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Students, faculty, and staff with "university Internet accounts" typically access the online world in a variety of ways, and four categories of variables may be identified in this regard. For example, some use university computers, while others use their own personal equipment. In addition, the location of the computers may vary from university offices to on-campus research labs, on-campus dorms, off-campus homes, or even other cities, states, and countries.
The purpose of the use varies too. Some use the technology for academic research, some use it for recreational purposes, and others use it for private personal reasons. Finally, some do all their work on a university "backbone," without the need for any outside phone lines. Others dial in, make a connection to the university server, and access the Internet directly through local phone lines. While those who dial in typically do so through a university phone number and a university's own "dial-in" system, others actually access the university server through a private Internet Access Provider.
Ultimately, depending on the circumstances, any or all of these variables may impact the nature and extent of a person's free speech rights in this context. And such an analysis does not even include all the Netizens who are not part of the university community but may be accessing university servers to retrieve information.
In Loving v. Boren, No. CIV-96-657-A (W.D. Oklahoma 1997) -- a recent First Amendment decision with important implications for the rights of cyberspace users in a university setting -- all four categories of variables set forth above were arguably relevant. Concerned that the University of Oklahoma might be violating a state law which made it a felony to "distribute...any obscene or indecent writing...[or]...photography" (21 O.S. 1021), President David Boren triggered the lawsuit by acting to restrict access to certain newsgroups on the university Internet servers.
Newsgroups, or USENET, became part of the Internet in 1980 when two North Carolina students designed the first version of what has become a huge worldwide discussion forum. Today, newsgroups are viewed as one of six categories of Internet communication: "(1) one-to-one messaging (such as "e-mail"), (2) one-to-many messaging (such as "listserv"), (3) distributed message databases (such as " USENET newsgroups"), (4) real time communication (such as "Internet Relay Chat"), (5) real time remote computer utilization (such as "telnet"), and (6) remote information retrieval (such as "ftp," "gopher," and the "World Wide Web")." See ACLU v. Reno, 929 F. Supp. 824, 834 (E.D. Pa. 1996).
Newsgroups are designed as electronic bulletin boards, where Netizens can exchange information and share text or graphic files regarding topics of interest to them. It is estimated today that over 15,000 newsgroups exist worldwide, addressing almost any topic imaginable. People can participate in newsgroups focusing on obscure scientific subjects, favorite sports teams, or personal career choices. Just about any topic of interest to someone may form the basis of a newsgroup.
From a legal and policy perspective, however, the problem is that many newsgroups focus on subjects of explicit sexual nature. Indeed, many believe that the most extreme and egregious examples of obscenity on the Internet can be found on USENET bulletin boards. It must be noted, for example, that newsgroups in the "alt.sex" and "alt.binaries.pictures.erotica" sections focus on everything from particular features of the human anatomy to the variety of erotic acts that may be performed with persons, animals, or inanimate objects. Amateur photographs leaving none of this to the imagination may be downloaded from the newsgroup sites.
In addition, most newsgroups are unmoderated. When an individual user with access to a USENET server posts a message to an...[unmoderated]... newsgroup, the message is automatically forwarded to all adjacent USENET servers....Responses to messages are automatically distributed to all other computers....[Thus]...the dissemination of messages to USENET servers around the world is...[typically]...an automated process that does not require direct human intervention or review." ACLU v. Reno, 929 F. Supp. at 835.
President Boren reportedly acted to restrict access to certain newsgroups after hearing complaints from both a state legislator and the local director of the Center for a Family Friendly Internet. In March 1996 the university stopped carrying about 100 newsgroups thought to contain graphic sexual material. See Pamela Mendels, Newsgroup Smut Poses Campus Quandary, N.Y. Times CyberTimes Online (Dec. 29, 1996).
On April 30, 1996, Bill Loving filed a lawsuit against the University of Oklahoma (OU), arguing that his First Amendment rights had been violated. Loving, who has earned a law degree but is not an attorney, currently serves as an Assistant Professor of Journalism at OU and teaches a course focusing on censorship.
After the lawsuit was filed but before the case went to trial, OU revised its newsgroup access policy and set up a second on-campus "news server." The "A" server restricts access to those newsgroups "approved" by OU, while the "B" server allows unrestricted access to all newsgroups on the Internet. Persons wishing to use the "B" server must be over eighteen and must certify that they are accessing the newsgroups "for academic and research purposes."
At the trial, Professor Loving represented himself and sought both declaratory and injunctive relief. Among other things, he based his argument on the claim that the Internet was a public forum. Whether or not the Internet, or any portion of the Internet, can appropriately be characterized as a public forum is a question that was raised in this column several months ago and is gaining increased attention nationally and internationally. See Stuart Biegel, Hybrid Domain: The First Amendment and the Public-Private Distinction Online (September 26, 1996).
The court rejected Loving's arguments, finding no irreparable harm to the plaintiff and approving of OU's new policy. In addition, Judge Wayne Alley declared that "[t]he OU computer and Internet services do not constitute a public forum. There was no evidence at trial that the facilities have ever been open to the general public or used for public communication. The state...has the right to preserve the property under its control for the use to which it is lawfully dedicated. In this case, the OU computer and Internet services are lawfully dedicated to academic and research uses."
Loving indicated over the phone on Sunday, February 16th that he plans to file a notice of appeal with the 10th Circuit this week.
It is instructive to return to the four categories of variables set forth above at the beginning of this piece. Category 3, focusing on purpose of computer use, was central to the court's analysis of OU's new dual server policy. Category 4, focusing on whether the university system is accessed directly or indirectly, was the basis of the court's inquiry into whether "savvy users" could get to the restricted newsgroups through "other, perhaps less convenient, routings." Indeed, the court found that such savvy users could actually continue to access the newsgroups, arguably making plaintiff's claim moot.
Finally, Category 1 (addressing who owns the computer) and Category 2 (addressing where the computer is located) arguably relate to whether a public forum has been created or in fact can be created in this context. If the computers are all owned by the university and/or are all located on campus, then an ensuing discussion forum might very well be seen as analogous to the more traditional open forums that have been found to exist in such places as campus squares and parks. If, however, many people are using their own computers and are dialing in from off-campus (which is often the case), then the analogy might become harder to establish. The issue is further complicated by the fact that just about all the newsgroups on the Internet include participants from outside a university community.
Professor Loving plans to base his appeal on the fact that before March 29, 1996, the university permitted any speaker, any philosophy, and any opinion on its news server -- thus creating a public forum that cannot be subject to prior restraint. The case is being watched closely by colleges and universities all over the world.
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