Latest development in Roger Karraker free-speech case [this is copyrighted

[David Farber <farber@central.cis.upenn.edu>]

 1/9/1
DIALOG(R)File 634:San Jose Mercury
(c) 1994 San Jose Mercury News. All rts. reserv.


07761051
FREE  SPEECH  IN  CYBERSPACE  SANTA  ROSA  CASE  TESTS GOVERNMENT LIMITS ON
COMPUTER BULLETIN BOARDS
San Jose Mercury News (SJ) - Saturday, September 17, 1994
By: Michael Dorgan
    Mercury News San Francisco Bureau
Edition: Morning Final  Section: Front  Page: 1A
Word Count: 1,046


TEXT:
San  Francisco  -  Should  comments  typed  on a computer bulletin board be
subject  to different standards than words spoken aloud? Should the federal
government impose limits on free speech in cyberspace?


  Those  are just two of several weighty questions that have arisen from an
unprecedented  case  here  involving  the  U.S.  Department  of Education's
regional Office for Civil Rights and Santa Rosa Junior College.


   Responding  to  a  sexual  harassment complaint by three students at the
college,  two  of  whom  were targets of crude comments typed into a campus
electronic  bulletin board, the civil rights office has ordered the college
to  regulate  all  on-line  communications  to prohibit comments that could
create a hostile environment for women or ethnic minorities.


  But  the  university,  faced with a potential loss of federal funds if it
fails  to  comply,  is  resisting. It claims that some on-line services are
forums  for  ideas  and  that  the  proposed  regulations would infringe on
students' free speech.


  "This  is  a cutting-edge issue," says attorney Bob Henry, who represents
the  campus. "At the college here, we literally have a soapbox, a permanent
fixture under the oak trees, where students and others can stand up and say
whatever  they  want.  But if we create the same soapbox using 20th-century
technology, suddenly the issue (of free speech) is different."


  John  Palomino,  the  San  Francisco-based regional director of the civil
rights  office,  says the case is the first of its kind, but he declines to
discuss  it  while it remains under negotiation. He would say only that "we
are  very careful about balancing First Amendment rights against the rights
of victims of either racial or sexual harassment."


  One  thing  both  sides agree on is that the e-mail comments several male
students  made about students Lois Arata and Jennifer Branham in the spring
of  1993 were vulgar and offensive -- so offensive they cannot be quoted in
this newspaper.


  The  comments  were  made  on  an  all-male  bulletin  board  set  up for
journalism    students   after   male   and   female   students   requested
gender-specific  bulletin  boards  so  they could speak frankly with fellow
students of the same sex.


  Branham,  who  grew up in San Jose, says trouble started when the student
newspaper, the Oak Leaf, published what she calls "the butt ad."


  Featuring  the  back side of a woman in a thong bikini, the advertisement
announced  a  sale  on  swimwear  at  a  local shop. But student Lois Arata
responded  not  by  rushing  to the shop but by picketing the newspaper for
allegedly promoting the sexual objectification of women.


  Some  staffers on the paper resented the criticism. After Branham rose to
Arata's defense, both she and Arata became targets of ridicule and derision
on the all-male bulletin board.


  Branham says that when friend Dylan Humphrey told her of the unflattering
flurry  of  messages,  she  complained  to the newspaper's faculty adviser,
Roger  Karraker,  who  immediately  shut  down  the all-male and all-female
bulletin  boards.  But  Branham  says  that  was not enough; she wanted the
culprits punished.


  She  complained  to campus administrators, who put Karraker on paid leave
pending  an  investigation.  Branham  says  that angered many of her fellow
students, who blamed her for getting the popular teacher into trouble.


  "It turned into a Jennifer trash-a-thon," she said.


  So  upset  she  dropped out of school, Branham consulted an attorney, who
threatened  to  file  a  sexual  harassment  suit  against  the campus. The
plaintiffs  would  have  been not only Branham and Arata but also Humphrey,
who  allegedly  drew  the  wrath  of  his fellow male students by notifying
Branham of the offending e-mail.


  Threat of court battle


  The college board this week responded to the threatened lawsuit by giving
the  three  would-be  plaintiffs $15,000 each. Henry says the board did not
believe  the  threatened  litigation  had  merit but was eager to avoid the
expense of court battle.
  But  the  campus may yet face a court fight, he says, if the civil rights
office  continues  to  demand  that  the  college impose on all its on-line
services  precise  regulations banning comments that could create a hostile
educational environment.


  Henry  said the campus administration does not object to such regulations
for  instructional or business on-line services. But the free flow of ideas
encouraged  by  some  on-line services, such as the school's current-events
bulletin  board,  would  be impeded if the university were held accountable
for any comments that might be found objectionable, he added.


  "We  really  see  it as censorship," he said. "We want to provide a forum
for  the  exchange of ideas. They should not impose legal liability (on the
college) for speech . . . that some view as offensive."


  Henry  said  holding the college responsible for all that is said on-line
would  be  like holding it responsible for all that is written in the books
in its library.


  But  attorney Patricia Gray, who represented Branham, Arata and Humphrey,
says  speech  issued through a computer is "not like standing under the oak
tree."
  Echoing  the  preliminary  findings the civil rights office outlined in a
June  letter  to  college  President  Robert  F.  Agrella, Gray argues that
on-line  communications represent a "limited public forum" and therefore do
not enjoy the same First Amendment protections as a full public forum.


  "Why  should  an  educational institution try to shirk the responsibility
they  would  have  in  a classroom or a locker room (where offensive speech
would not be tolerated)?" she asked.


  Mark  Rotenberg, director of the Electronic Privacy Information Center in
Washington,  D.C., which monitors the impact of law on cyberspace, says the
Santa Rosa conflict represents "the most fully developed case involving the
scope of permissible speech" in computerized communications.


  But  fully  developed  does  not  mean  easily resolved. Rotenberg, a law
professor  at  Washington's  Georgetown  University,  says  the  case  fits
squarely into a "gray area" of federal law. Part of the confusion, he adds,
is that society has not yet decided on a metaphor for on-line services.


  Should  they  be  regarded  as  libraries,  bookstores or newsstands, and
thereby  not  be held accountable for all that passes through the wires? Or
are  they  controllable conduits, as suggested by the civil rights office's
concept of a "limited public forum?"


  "It's not easy to come down on one side or the other," Rotenberg said.


                Copyright 1994, San Jose Mercury News


DESCRIPTORS:  SANTA-ROSA; CIVIL; RIGHT; RULING; COMPUTER; SEX; ABUSE