NY ACLU letter to Cornell [cr-95/11/28]


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The following November 16, 1995 letter was delivered to Cornell University

132 West 43rd Street
New York, New York 10036

November 16, 1995

Hunter R. Rawlings, III
Cornell University
300 Day Hall
Ithaca, New York  14853

RE:  Freedom of Expression -- E-mail Sexual Harassment Complaint

Dear President Rawlings:

We write to express our concerns about the report in the November 15, 1995
_New York Times_ ("Cornell Charges 4 Students in E-Mail Prank" on B11)
concerning Cornell University administration's decision to pursue sexual
harassment complaints against four Cornell University students in connection
with the students' E-mail message posted to the Internet that lists "75
reasons why women should not have freedom of speech."  If the report in the
_Times_ is accurate, the University's pursuit of such charges against the
four students violates fundamental principles of free expression.  If such
complaints have been initiated, we strongly urge that Cornell University
dismiss them.  If Cornell University has not yet actually commenced the
disciplinary actions, we urge that your administration not proceed.

The principles of free expression means that Cornell University has no power
to restrict expression because of its message, ideas, subject matter or
content.  A corollary to this principle is that Cornell University may not
punish speakers based on their expression's message, ideas, subject matter or
content.  Sexually offensive speech, like other forms of "hate speech," is
protected by the principles of free expression, unless it rises to the level
of discriminatory harassment._1_

Freedom of expression, especially in the academic forum, is designed to
encourage truth-seeking by protecting the challenge and response of
intellectual discourse.  An inevitable consequence of such freedom is that
offensive and erroneous opinions will be aired.  We rely, however, on a self
correcting marketplace of ideas to correct "wrong minded views."  In his
concurring opinion in _Whitney v. California_, 274 U.S. 357, 375 (1927),
Justice Louis Brandeis discussed the instrumental aspects of the marketplace
theory of free expression.  In so doing, he observed that "freedom to think
as you will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech ...
discussion would be futile, that with [it], discussion affords ordinarily
adequate protection against the dissemination of noxious doctrine; that the
greatest menace to freedom is an inert people; that public discussion is a
political duty ... that it is hazardous to discourage thought ... that fear
breeds repression; that repression breeds hate; that hate menaces stable
government; that the path to safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the fitting remedy for
evil counsels in good ones."

It is understandable that university officials should be concerned about the
increase in the use of sexist language.  We share this concern.  And we find
offensive and wrong minded the E-mail message conveyed by the four Cornell
students.  However, no matter how troubling or offensive the message is, the
administration of Cornell University should not depart from principles of
freedom of expression when addressing the issues surrounding this dispute.

Rather than try to penalize the ideas of these four students, _2_ we urge
Cornell University to confront directly these students' ideas and to speak
out against sexism.  We think it perfectly appropriate for you to use the
platform of your office to educate Cornell's student body and the public on
the flaws and inaccuracies of the E-mail message disseminated by the four
Cornell students.  This "more speech" approach represents the basic
obligation of any institution committed to reasoned discussion and debate.
 There is no place where the marketplace theory of free expression must be
more honored and practiced than on a college campus.

Cornell University's decision to offer its students broad access to the
Internet and its thousands of users was obviously a farsighted recognition of
this principle and an acknowledgement that networked communication will
increasingly provide the forum for the free exchange of ideas.  The _Times_
report suggests that the marketplace theory of free expression appears to be
in full swing as the wrong-minded E-mail message has apparently already
provoked "thousands of angry messages" both to Cornell University and to the
particular four students.  There is no need for Cornell University to
intervene in, or interrupt, the flow of the "marketplace" in so heavy-handed
a fashion by punishing the four students.

We are available to meet with you to discuss these issues in greater detail.
 Thank you for the consideration of our views.


Lesly I. Lempert

Norman Siegel
Executive Director

Beth Haroules
Staff Attorney

cc:       Barbara Krause (paper mail)
          David Lambert (facsimile)
          Henrik N. Dullea (facsimile)


_1_ Based on the facts reported in the _Times_, the students' E-mail would
not constitute actionable harassment under any applicable federal or New York
State law. Nor does it appear that the students have committed sexual
harassment as that term is defined by Cornell University's own sexual
harassment guidelines.

_2_The _Times'_ report also raises questions with respect to the due process
rights of these particular students.  According to the _Times_, Cornell
University's sexual harassment guidelines require that for a violation to be
found, one of the original recipients of the E-mail message sent by the four
students must file the charge.  None of the original 20 recipients has filed
a complaint.  Rather, Cornell University is proceeding on charges of sexual
harassment against the four students on the basis of an unidentified
complainant.  Due process requires not only that a person be informed of the
nature and the cause of the accusation against him, the accused has the
fundamental right to be confronted with the witnesses against him and to be
informed of the identity of the complainant against him.

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