Dangerous Court Ruling Says Colleges May Be Required To Block Access To Certain Websites

from the free-speech? dept

Over the past few years, there have been a number of debates and legal fights concerning questions around Title IX and due process. Title IX of the Education Amendments Act of 1972 is supposed to protect people in educational settings from sex discrimination. It has been interpreted in some questionable ways, lately, with regards to the due process of anyone accused. But, now it’s also impacting some other areas as well. The folks at FIRE highlight a fairly horrific appeals court ruling in the 4th Circuit, overturning a lower court ruling (that had dismissed the case), saying that a university might be required to ban access to certain websites under Title IX.

The case was filed against the University of Mary Washington, claiming Title IX violations from some students/student groups. While the court leaves some of the claims dismissed, it reinstates a specific Title IX claim that is quite worrying. As FIRE’s Samantha Harris explains first the background of the case:

The case, Feminist Majority Foundation v. University of Mary Washington, stems from a series of events that roiled UMW?s campus back in 2015. At the time, members of the UMW student group Feminists United on Campus (a local affiliate of Feminist Majority Foundation) were speaking out about several issues on campus, including the student senate?s decision to authorize fraternities as well as a bawdy rugby chant that several members of UMW?s men?s rugby team were recorded singing at an off-campus party. Following their advocacy, FUC members found themselves the targets of online hostility, particularly on a now-defunct platform called Yik Yak that allowed users within a certain geographic radius to post anonymous messages. FUC complained about this repeatedly to the UMW administration, and after they found UMW?s response to their complaints to be lacking, they first filed a complaint with the U.S. Department of Education?s Office for Civil Rights and then, ultimately, a federal lawsuit.

The lawsuit claims that UMW discriminated against the plaintiffs, in violation of Title IX, by responding with deliberate indifference to their claims of peer harassment, and by allowing UMW students to retaliate against the plaintiffs for filing an OCR complaint. The suit also alleges that former UMW president Richard Hurley retaliated against the plaintiffs by publicly defending the university against their allegations of discrimination.

The lower court dismissed the case, but here the 4th Circuit brings back a large component of it in a very troubling manner. Basically, by saying that since the University provided internet access to sites where harassing content could be found (on the third party app Yik Yak), the University was potentially liable:

The Complaint alleges that much of the harassment occurred through Yik Yak. Although that harassment was communicated through cyberspace, the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak?s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University?s wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students….

Furthermore, to the extent the sexual harassment was communicated through UMW?s wireless network, the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW?s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW?s network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.

Ah, there’s that copyright creep situation again. It’s annoying when the average clueless joe says something along the lines of “well, if you can kick people offline for copyright, why not x…” but having a Federal Appeals Court Judge say it is really frustrating.

But think about what the court is saying here. Because this happened via the university’s network (even on an app totally unrelated and out of the control of the university), the university can still be blamed for not blocking it. That’s… crazy. That means that a university would need to proactively police the entire internet to stop anyone from saying anything harassing — and if they come across anything or are told of anything, they’d be required to block access to that site or app entirely for all students. How is that reasonable?

The court also rejects the fact that the university had no way of figuring out who posted the “offending Yaks.” Yik Yak (which went out of business last year) was always entirely anonymous. But the court doesn’t seem to care:

To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW?s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers.

The dissenting opinion in the ruling clearly sees the problematic impact of all of this:

Make no mistake, the majority?s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims. The University should not hesitate to seek further review.

The case is far from over (and FIRE also notes that there’s a separate issue of whether or not the content was even harassing in the first place, that hasn’t even been considered yet). But the implications here are huge and really damaging.

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Companies: university of mary washington, yik yak

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Comments on “Dangerous Court Ruling Says Colleges May Be Required To Block Access To Certain Websites”

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42 Comments
James Burkhardt (profile) says:

Re: Re:

Well, prior to recent change ups, the SCOTUS have been very against the use of the courts to force or censor speech based on the content of that speech. Forcing a third parties to host or censor speech via federal law seems anathema to the established precedent of the SCOTUS. I do not believe the new judges will be more sympathetic to that goal. In the end, this is an attempt to use federal law to censor the sppech of third parties, and they won’t like it.

Assuming it gets to them. Kavanaugh has thrown a big monkey wrench in any case that can be perceived as political, given his rant at his confirmation hearing. So who knows.

Bamboo Harvester (profile) says:

Re: Re: Re:

This one is deeper than censoring. If it goes to SCOTUS, they’ll toss it.

The ruling says in different words that people in general and students in particular have a right not to be offended.

Which means if they’re going to ban even one site, they have to ban the entire internet. Even math geeks can get offensive when their theories or proofs get challenged online – there’s NO site past, present, or future, where someone won’t be able to find something they can claim offends them.

The same for all other methods of sharing ideas.

Bruce C. says:

Re: Site blocking? not the whole story.

The element of retaliation in this case creates a requirement on the university to protect affected students from that retaliation. The appeals court recognizes that retaliation took place (or more accurately, that there is enough evidence of retaliation to countervail a motion to dismiss), which creates the question of whether the U of MW took adequate measures to suppress and discipline this retaliation.

But does this involve broad blocking of particular websites for the entire student body, or simply being responsible for taking more action to prevent people from retaliating online? The university’s own logs would show which IPs were contacting Yik-yak at which times, and also which student ID had logged into the university network on a given IP. Using a VPN would avoid this trace but would also remove the location based anonymity on the Yik-yak end. This still isn’t enough to prove that user X was the person at the keyboard when the harassment occurred, but (since the university presumably has a “no account sharing” policy) does give the university grounds to inquire exactly what was going on in a particular PC from the person responsible for the account. According to the appeals court, they didn’t even bother to try that.

The appeals court (as quoted in the article) doesn’t say the university should have blocked the website, it says that is a claim stated in the complaint. The appeals court lets the claims stand for trial because university didn’t take a number of plausible actions to identify and punish the harassing speakers. Because it didn’t take those actions (many of which fall far short of site-blocking), it may be liable for failing to do so.

The appeals court doesn’t appear to rule out or endorse site-blocking as an appropriate action for the university to have taken. It may view this as an open question that also depends on the ability to identify the harassers.

Now even if the university was able to identify people accused of harassment, the process needs to respect the rights of the accused. I’m not saying the feminists should win this case automatically, but the appeals court highlights a potential conflict between internet law and sexual harassment law that at some point will have to come before the supremes.

That Anonymous Coward (profile) says:

What in the actual fuck…
We need Judges who understand tech or have to take a course in basic concepts before making rulings.

‘The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers.’

So the University needed to expend time and resources to file a lawsuit to force an online messaging program to ‘identify’ its users because a group of Feminists went on the app to see if people were saying mean things about them.

I went out looking to get offended & I was!!! So the one with the deepest pockets should pay me for not protecting me from other peoples free speech disagreeing with my free speech because only my speech is the good speech.

TL;DR – We offended everyone by demanding they live up to our standards & how dare they object!!!!

Anonymous Anonymous Coward (profile) says:

justice or Social Justice

Does the Feminist Majority Foundation claim that they represent a majority of feminists or that feminists are a majority of the population? Is either provable or is it like Reagan’s silent majority? A wish.

The claim that UMW could have controlled speech, and controlled Yik Yak because they didn’t try to control speech seems specious at best. If they had tried and found they couldn’t, would they also be liable? They might be able to control their networks, but a platform not owned or controlled by them? Maybe they could have banned Yik Yak, but can they ban all social media, and get away with it?

Controlling networks, not platforms, for speech related issues seems like a gigantic slippery slope. If they control for one group then an opposing group might sue. If they control for the second group then the first group might sue. If they get into the business of controlling speech they are just setting themselves up to be sued and any reasonable entity would decide that getting sued is an appropriate reason to not take some action, especially when that activity is constitutionally protected.

In a separate but related issue, it now appears that there is a push for claiming that ‘staring at someone is akin to rape’. There needs to be some backlash at the SJW’s for their insistance that their justice is more just than others justice, even if constitutionally protected activities like due process are denied.

Anonymous Coward says:

Re: justice or Social Justice

In a separate but related issue, it now appears that there is a push for claiming that ‘staring at someone is akin to rape’

Despite how your linked blog post portrays it, the NSVRC paper says nothing of the sort, and in fact a large portion of it is dedicated to moving away from the umbrella term of "rape" in many contexts and being more specific in the way we discuss and catalogue various incidents. It explicitly calls for leering/staring to be treated as its own distinct category, and also sometimes considered as a subcategory of "non-contact sexual misconduct", and to be considered separately from physical violations. One could debate their more general use of "sexual violence" as an umbrella term under which all these things fall, but since the entirety of the report is a call for more specificity not less and quickly abandons all umbrella terms in favour of looking at things in detail, and also makes no assertions that "sexual violence" as a general umbrella term should itself be used in law or policy without more granular definitions within, it doesn’t seem particularly worthwhile to harp on that.

Anonymous Coward says:

Re: Re: justice or Social Justice

Also in this case the "SJWs" he refers to are the National Sexual Violence Resource Center, a well-established CDC-funded organization that provides huge amounts of resources on preventing, responding to, and coping with sexual violence at every level, helps support and supply the direct-response organizations for victims in states across the country, and co-ordinates the Sexual Assault Awareness Month campaign.

So actually yeah, they kind of are Social Justice Warriors, and further proof that’s a good thing to be

Anonymous Coward says:

Re: Re: Re: justice or Social Justice

Staring is, in fact, akin to rape. Because that’s what men are, hyped up ticking time bombs of testosterone, violence and sperm.

Women understand women. They know how each other ticks. A woman is the perfect partner for another woman. Even from a logical perspective, once you break the glass ceiling there is literally no advantage a man has over a woman. Women in relationships with each other even avoid unwanted pregnancies. Men are good for little more than stimulating prostate glands in yaoi fiction.

The degradation of the Y chromosome cannot come soon enough. I eagerly anticipate the day religion and chauvinism give way to an Amazon utopia blessed by Sappho.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:2 justice or Social Justice

Just how do you know what I think it says. I haven’t read it, and don’t intend to because is am not worried about it. I am worried about those folks who think what they say should have the force of law.

What I do know is that there are unduly passionate persons out there. They seem to think that accusation is equal to conviction, and where is the nearest yard arm for hanging. I offer you the opportunity to give them whatever nomenclature you think is appropriate, but for me, without due process, nothing happened. If the accusation is true, take them to court where due process will be applied. Due process includes:

U.S. Constitution – Amendment 6

Right to Speedy Trial, Confrontation of Witnesses

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

These are things that the unduly passionate wish to obviate. And I will call them what I want, though I do not intend to demean anyone doing good works. They, however need to show that their works are good and in support of the constitution. The proponents of Title IX compliance as currently constructed (it is not a criminal trial it is an administrative hearing by non legal people, but by college or university administrators) wish that the above mentioned 6th Amendment be ignored, and people found guilty by say so only. They don’t even want to be cross examined by a competent cross examiner as it will ‘re-traumatize’ them. Try that in a court of law.

Something similar to the way some copyright issues are being handled. Accusation = guilt. That is not how the operating instructions for this country work, even if it has been subjugated in the past does not mean it should be in the future.

Anonymous Coward says:

Re: Re: Re:3 justice or Social Justice

Just how do you know what I think it says

You linked to a blog post about it and described it as "claiming that ‘staring at someone is akin to rape’" so, uh, I took that to be what you think it claims.

All I wanted to point out was that in your zeal to attack "SJWs" you managed to get yourself turned around completely backwards on what a study you were attacking actually said. Apparently that doesn’t bother you, so, fine.

I offer you the opportunity to give them whatever nomenclature you think is appropriate, but for me, without due process, nothing happened.

The report was commissioned by Uber for the purposes of developing a taxonomy so they can categorize customer complaints about driver behavior, and track data on those complaints. Nothing else, and certainly nothing to do with the force of law or Title IX compliance. So… what exactly is the due process you feel is being neglected there?

See, this is why you shouldn’t go on long rants about something you haven’t read.

Anonymous Coward says:

Re: Re: Re:4 justice or Social Justice

(and you will find that people are much more receptive to your legitimate concerns about due process under Title IX if you don’t also randomly label the NSVRC as a bunch of SJWs trying to declare staring the same as rape. Doing so suggests that, despite your protestations about due process and the constitution, at least some of your opinion here comes from simple hostility towards social progress on addressing sexual assault.)

Igualmente69 (profile) says:

Re: Re: Re:5 justice or Social Justice

I think both of you are being unfair to the other’s points. It is clear that the actual report states that unwanted staring is categorized in a workplace sense as undesirable but is not called rape, and the report makes no claims that it should be legally actionable. However, the point about a push towards making accusations of sexual assault punished without due process is also valid, and it is plausible to be worried about such people using the report as a one basis for punishing people.

Anonymous Coward says:

It’s nice to see FIRE doing something good for once in their miserable existence instead of serving as something for conservative talking heads to use in desperate attempts to point out that their viewpoints are somehow being "censored". FIRE’s half-assed speech code color alert system does more harm than good, giving idiots cheap and easy talking points with overly simplistic "Green Good, Red Bad!" iconography. Frankly, the continued insistence that free speech on campus is a serious issue is a load of crap, and FIRE makes it easy for people to believe said crap that the talking heads spew.

Anonymous Coward says:

Re: Re:

Funny how FIRE is labeled both conservative and liberal depending on whose “Free Speech Zone” they’re fighting against.

I get it that you likely see “Free Speech” as a conservative calling card these days, but there did exist a time prior to 2014 when free speech was a standard lionized by liberals and progressives alike. Organizations that act in that vein still exist.

Christenson says:

Re: Re:

Even if the university had turned off its entire internet, everyone’s cell phone can still connect, still post harrassing crap!

The university deserves ridicule for not addressing the situation…but, as noted lots of places, “deplatform the bastards”, or “censor the bastards” won’t work and the attempt will inflict huge amounts of collateral damage.

Anonymous Coward says:

subject is different but it all boils down to what the entertainment industries have been doing, ie, getting websites blocked and actually removed from the web, simply because they didn’t/dont like the content! to me this is another example of courts and judges doing whatever is wanted by certain bodies to remove freedom of speech as part of the content on a web site, because it doesn’t suit a certain element!!

i love pancakes says:

its time for

yes you guess it the downloadable website

for a limited time you too can get your complete copy of every way to hack your college , FUCK DA SYStem , fuck there censorship and comes complete with an entire section of memes for all those EU challenged nutwings , also includes some 4K imagery of my balls and penis so you can hack the site and put them up as a gesture of accreditation …we cant have you breaching my copyrights now….

Erik (profile) says:

Work Arounds

I know that Yik Tak is gone, but if it was still in business, wouldn’t the obvious work around to being blocked to simply turn off WiFi and use Yik Yak on the cellular data connection? The net result is still the same and the school is outside of their ability to post it. But I can see the two avenues the retaliatory lawsuit would take, sue the school because you were standing on their property when you posted (nevermind you weren’t using their network), or sue the cell carrier as THEY are the obvious problem. I’m thinking Verizon would have an easier time getta suit like this thrown out.

carlb (profile) says:

Re: Work Arounds

You wouldn’t even need to do that. VPN, anyone?

Of course no one in the People’s Republic of China would consider such a thing as that country is a glorious workers’ paradise, but when dealing with capitalist imperialist oppressors… oh, wait a minute?

In any case, it’s odd that a pay phone (remember those?) installed by a telco monopoly in an on-campus location would be recognised as a common-carrier facility but wi-fi is not.

It’s also disappointing that universities give lip service to freedom of expression when it serves the faculty’s own interests (such as an excuse to justify tenure and non-accountability for a lifetime) but these same universities are actually hotbeds of censorship and political correctness. The responsibility for the content of the message rests with whomever wrote it, not with the academy.

Rico R. (profile) says:

Universities block sites that can be used for copyright infringement, so why can’t they also block sites that can be used for discrimination? And while they’re at it, why not block sites that show how to hack their systems? And sites that people can use to collude on assignments (i.e. – Google Docs)? And sites that people can plagiarize on assignments? And block Tor, VPNs, proxies, and pretty much anything else that can help students circumvent these blocks? Better yet, just turn their internet connection to an intranet connection, so students can only access systems they have 100% control over! [/sarcasm]

carlb (profile) says:

Re: Re: a modest proposal

Better yet, just turn their internet connection to an intranet connection, so students can only access systems they have 100% control over!

Yes, that is how it was back in my day. In 1984, three kids at Queen’s U managed to use whatever passed for a packet-switched network back then to get from the university mainframe to an RCMP computer. All three were expelled and all undergrads were denied access to any outside network connections from university computers, by order of the university Senate, for the next five years. This ended in 1989, the same year they removed the last of the party line telephones from the dormitory rooms (they had been one line per two students). Tell the kids that these days…?

Rico R. (profile) says:

Re: Re: Clarifying my original comment

Obviously, the “[/sarcasm]” (which in BB Code, would translate to “end sarcasm”) was lost on most people. The whole comment was meant to be a joke. The point I was trying to make is this: where does site blocking in an attempt to avoid liability and/or prevent illegal/immoral behavior end? I merely piggybacked off of the “You can block for copyright, so right not X?” remark in the article and took it a few steps further. The idea that site blocking is the ONLY answer that seems acceptable by Hollywood and some judges (like in this case) is ludicrous.

Furthermore, if people can misconstrue my sarcastic words as being serious, whose to say that someone at some college’s IT department couldn’t judge discriminatory text as being innocent and face liability because of it? This is why this ruling is so troubling!

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