Chicago is a big city -- big enough to contain two universities diametrically opposed on the issue of free speech. The University of Chicago recently updated its free speech policy to, you know, actually protect free speech, unlike many universities who feel protecting free speech means protecting every student's feelings.
On the other end, we have Chicago State University, which has abused both its administrative powers and IP rights to shut down free speech. A couple of years back, CSU issued a cease-and-desist order against a critical blog, claiming its trademarks were being infringed by the inclusion of the university's name and logo. Of course, no such infringement was occurring because trademarks protect use in commerce, not criticism.
But this sort of free speech-muting activity is fairly common at CSU. At one point, it instituted a policy forbidding anyone but the school's "authorized media representatives" from speaking to the press. It also said prior approval would be needed for everything from social media posts to opinion pieces. It also retaliated against its own school newspaper for publishing critical articles, ultimately resulting in a lawsuit in which the school paid out $200,000 in legal fees. In the midst of all of this, the school also played hardball on FOIA requests, refusing them for clearly spurious reasons and firing one of its attorneys for having the unmitigated gall to compile responsive documents.
Now, it's in court again, having its motives and legal maneuverings criticized by the presiding judge. Here's what's been happening since we last covered CSU's actions against the bloggers at the CSU Faculty Voice Blog.
CSU has engaged in a campaign of intimidation against both professors, starting with a letter demanding that Beverly take down the CSU Faculty Voice blog based on several dubious claims of trademark infringement. Since Beverly refused, CSU has steadily escalated its efforts, including initiating disciplinary hearings against Beverly for holding a class in an unauthorized location when he had the students in his public management seminar attend a Faculty Senate hearing to address censorship on campus. Bionaz was also charged with “cyber-bullying” for comments made to a CSU administrator in a face-to-face conversation.
The presiding federal judge, Joan Gottschall, doesn't discuss all of these incidents in her decision to toss the school's motion to dismiss [pdf link], but she does address the cease-and-desist letter, which was nominally about trademark infringement, but was really about telling two bloggers to shut up. She establishes the allegations first:
According to the plaintiffs, the defendants collectively attempted to chill their First Amendment right to free speech by sending a cease and desist letter demanding that they shut down the blog. In that letter, in addition to assertions about the use of CSU’s trademarks, Cage states that “the lack of civility and professionalism expressed on the blog violates the University’s values and policies requiring civility and professionalism.”
The plaintiffs stress that this letter is dated one business day after a post appeared on the blog contending that a senior CSU administrator (Angela Henderson, CSU’s Interim Provost and Senior Vice President for Academic Affairs) had partially falsified her resume. The plaintiffs allege that they fear discipline under the Computer Usage Policy for publishing the CSU Faculty Voice, even though that the blog is not hosted in CSU’s servers. They also allege that the Computer Usage Policy is improperly vague and overbroad. Finally, they allege that they fear discipline under CSU’s Cyberbullying Policy.
And then refuses to cut the university any slack when it tries to have it both ways.
In contrast, the defendants contend that the reference to civility in the cease and desist letter does not show that CSU threatened the plaintiffs with legal action based on the Computer Usage or Cyberbullying Policies. The court disagrees… The references to civility do not appear to be related to the claims of trademark infringement raised elsewhere in the cease and desist letter. It is eminently reasonable to read the letter as a demand to shut down the CSU Faculty Voice blog based on its alleged failure to meet CSU on-line civility standards.
As the judge notes, the school's civility standards (and cyberbullying policy) are broadly written, and it can be "reasonably inferred" that CSU would seek to use these policies against the blog, even though it isn't hosted on CSU servers. She points out that the policies apply to "electronic communications" that "prohibit any communication which tends to embarrass or humiliate any member of the community." Likewise, the Computer Usage Policy says "includes web sites and blogs hosted on the university's server," rather than specifically restricting CSU's area of control solely to the contents of its servers. And, on top of it all, the school did actually threaten to use these policies against the bloggers.
It is not explicitly limited to Internet websites and blog posts hosted on CSU’s server. That is a possible interpretation of the policy but the court cannot make findings of fact at this stage of the proceedings. Similarly, the Cyberbullying Policy is not limited to communications made using CSU’s computer equipment. Thus, the allegation that the blog is hosted on a non-CSU server does not negate the inference that the defendants were threatening the plaintiffs based on the Computer Usage and Cyberbullying Policies.
[...]
[The court] declines to ignore the fact that a letter ostensibly about alleged trademark violations contains assertions about the tone and content of the CSU Faculty Voice blog.
And, once again, the university tries to drag IP rights back into this, even though the plaintiffs aren't even interested in this small part of CSU's actions. (Because criticism is not commerce and the trademark claims wouldn't stick.) And again, the judge kicks this particular crutch out from underneath the school.
With respect to redressability, the defendants argue that if the court rules in the plaintiffs’ favor, it “would have no impact on the trademark issues about which [p]laintiffs complain in this lawsuit.” (Dkt. 49 at Page ID# 356). The plaintiffs, however, referred to the defendants’ assertions about trademark infringement to provide context for their claims. They do not seek any relief regarding trademark claims, such as a declaratory judgment finding that their use of CSU’s marks was proper. Instead, they seek relief based on a variety of First Amendment theories. The defendants’ arguments about redressability are, therefore, unconvincing.
CSU's motion to dismiss has been denied, and the next time it appears in court, it will be facing the bloggers' motion for a preliminary injunction. So far, the judge seems unimpressed with the school's arguments. When your attempts to bully someone into silence fail, you often find yourself trying to explain your actions to a federal judge. And CSU is trying oh so hard to make it look like it never did any of the things it did. The future of this case doesn't look promising for CSU, but at least it's had previous experience in writing checks out to wronged parties.
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