The Crime of Email at Bowling Green State University | Hacker News Reader

The Crime of Email at Bowling Green State University

academeblog.org

11 pointsanigbrowl21 comments

So much about this article makes no sense. Don't misunderstand me... It sounds like there were some shenanigans going on here, and I'm sympathetic with the guy who they attempted to silence. But all this talk about "first amendment rights" and whether a "ban on sending emails" is legal make the author come across as fairly naive about how the world works.

The first amendment does not give you carte blanche to say anything you want at any time with no consequences. It simply says that the government can't lock you up for it.

> The first amendment does not give you carte blanche to say anything you want at any time with no consequences. It simply says that the government can't lock you up for it.

Correction: It says the government can't punish you for the speech. As a state school, BGSU is acting on behalf of the state and therefore must not violate first amendment free speech rights. Even though BGSU did not put professor Coons in prison for speech, firing Coons still violates the first amendment.

While public employees do have additional rights against their employers as a result of the Constitution that public employers don’t have, the First Amendment (rather, the 14th, as the 1st does not apply to the States) does not limit states as employers in the same way as it does states in other relations; states are not prohibited from regulating the workplace speech of their employees the same way they are prohibited from regulating speech generally outside of that context.

Public employees have a qualified right to speak on matters of public concern as private citizens without employment consequences; the Ninth Circuit’s model jury instructions on the issue are illustrative of the state of the law on this: https://www.ce9.uscourts.gov/jury-instructions/node/147

It is generally true of course that the first amendment doesn’t shield you from private consequences, but, from the article:

> It’s important to point out that the rule in the CBA is actually illegal. As BGSU’s Freedom of Expression policy points out, Ohio state law compels universities to strictly follow specific required language for any harassment policy such as this. Any alleged harassment must not be protected by the First Amendment (Coons’ email opinions clearly are) and must be “so severe, pervasive, and objectively offensive that it effectively denies an individual equal access to the individual’s education program or activity.” It is hard to imagine how Coons’ emails deny anyone equal access to anything on campus.

From the BGSU’s document, so this is their understanding of the law I guess:

> Ohio Revised Code 3345.0212 requires each public university in Ohio to adopt a policy on harassment that is consistent with and adheres strictly to the definition of harassment in section 3345.0122 of the Ohio Revised Code.

> The university believes that the right of expression is as necessary as the right of inquiry and that both must be preserved as essential to the pursuit and dissemination of knowledge and truth. However, the university’s commitment to freedom of expression does not extend to harassment. Under section 3345.0122, harassment is defined as conduct and/or expression that is:

> 1. not protected by the First Amendment to the United States Constitution or Article I of the Ohio Constitution (Unprotected Expression);

> 2. unwelcome; and

> 3. so severe, pervasive, and objectively offensive that it effectively denies an individual equal access to the individual's education program or activity.

> Expression (either in person, in writing or by telecommunication) must meet all three elements to be actionable under this policy.

(Emphasis mine).

It looks like they have decided to import the First Amendment into their harassment document. I’m not sure I understand exactly what “protected by the first amendment” means (in these sense that the first amendment sets the default expectations for government behavior, it doesn’t specifically protect particular types of speech) but if there’s anything weird there it is a problem with Ohio law.

Classic "I thought the 1st Amendment shielded me from all consequences" reasoning.

Not in this case. See page 6 of BGSU’s own policy. They explicitly have stated that speech which is protected by the First Amendment is not harassment. Whether this is a good policy or not is definitely debatable, but it is their policy.

https://www.bgsu.edu/content/dam/BGSU/general-counsel/docume...

You missed the point. There's a certain world view that thinks the 1st Amendment means one can say whatever one wants and that the 1st Amendment protects them from any consequence of that. That isn't what the 1st Amendment is about, regardless of what this guy thinks.

I don’t think I missed the point, or if I did, it was a non-sequitur. I’m familiar with that worldview, and yeah it is dumb, but it isn’t being espoused by anyone in this particular situation.

The university has a policy that freedom of expression must be preserved. The only exception they list is harassment. Their policy, written to comply with Ohio law, is that speech which would be protected by the first amendment does not constitute harassment. Is that a good policy? I suspect there are situations that it doesn’t handle well. But it is spelled out pretty clearly on page 6 of the link I provided. They seem to have put themselves in a position where they can’t punish people for speech, unless it falls outside the range of speech that would be covered by the first amendment.

The first amendment says the government cannot punish you for speech. BGSU is a state university and is therefore an arm of the government. BGSU therefore cannot punish you for protected speech.

Public employers can, in fact, punish you for workplace speech, even, in many cases, where that speech would otherwise be protected by the First Amendment. The 1st Amendment does not entitle you to use of public time and resources to conduct activism outside of your job duties.

Did you even take one second to read what I wrote? Maybe do that before you kneejerk post. Hint: nothing I wrote was about the University.

The more this crap happens, the less legitimate academia becomes.

Which is fine because intellectuals are pretty useless.

Were the contents of the emails in one of the links? The author writes "What Coons wrote does not meet a harassment standard." but I'm having trouble finding what Coons wrote (possibly because the wayback links for chronicle.com display "Your chronicle.com access has expired." shortly after loading).

If I was annoying my colleagues with emails they didn't want to receive then I would stop. If I didn't stop I would expect to get reprimanded by my boss.

But the first amendment says that I can annoy you whenever I want. So there. Ipso facto, e pluribus unum, and such and such.

Don't forget the fringe on the flag, which makes me unaccountable.

That's the number 1 rule of rapport-based organizations: you can't offend important people if you wish to remain.

Don't make powerful people look bad and expect it to go over without them naturally wanting to use that power.

A crime is an action or omission that constitutes an offense that may be prosecuted by the state and is punishable by law. This, is not.

Seems like we're headed into a world where only the most literal language may be used to describe anything. Goodbye simile, metaphor, hyperbole, and sarcasm. You will be missed.

In this article's case it mixes things actually barred by state law with alleged violations of a bargaining agreement and such.

So IMHO "crime of email" in the headline is a legitimate metaphorical use of "crime" while the mixed situation in the article makes it merely confusing.

Correct, but interesting it is all of what you mentioned, except not “the state” and “law” becomes “bylaw”

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