Monday, December 22, 2008



MSU cannot abide criticism from a student

We read:
"A Michigan State University student government leader has been found guilty of "spamming" and misuse of university resources after she criticized the administration's plan to change the school calendar. MSU junior Kara Spencer had carefully selected and e-mailed 391 of the school's faculty members, encouraging them to express their views about the changes. Spencer, who plans to appeal her unconstitutional punishment, has turned to the Foundation for Individual Rights in Education (FIRE) for help.

"It is outrageous that MSU's Student-Faculty Judiciary would find against a student who did nothing more than write members of her community who might be concerned about a major administrative decision," FIRE President Greg Lukianoff said. "MSU must immediately reverse this unjust punishment and revise its policy."

Source

31 comments:

Anonymous said...

Kim Jong Il would be proud of this bunch.

Anonymous said...

FIRE is starting to lose their minds. Their releases are starting to become more and more full of hyperbole and rhetoric.

As FIRE claims that this is clearly a violation of the Constitution, can anyone point to the clause in the Constitution where a private email system cannot control or limit the amount and type of email that exchanged by a user?

Anonymous said...

That's Michigan State University. The "State" in the name indicates that it's a government run university, thus the 1st Amendment of the Constitution applies.

Anonymous said...

It's not govt. run Ed, but they do take govt. funds, meaning they must comply with all federal laws and regulations.

anon2, it's not the emails, it's the speech that's being prohibited in violation of the 1st Amendment.

Anonymous said...

it's not the emails, it's the speech that's being prohibited in violation of the 1st Amendment.

That's the point. It is NOT the speech that is being prohibited, but the mass mailing of something using the privately run university mail system. They are not saying her content is prohibited, but rather the mass mailing is prohibited.

There is nothing in the Constitution that says that the government or any entity must provide you a conduit to convey your message. That is what happened here. The woman claims that MSU must allow her to disseminate a message in violation of the rules governing the use of the computer network.

They didn't say the woman couldn't send a message with a certain content, but rather that she couldn't use the University's email system as a mass mailing device.

This really seems more of a case where the woman is saying "you're not the boss of me."

Anonymous said...

"It is NOT the speech that is being prohibited, but the mass mailing of something using the privately run university mail system."

"You are free to write what you want (within reason) but you aren't free to share it with anyone."

Claiming it as spam is merely an excuse; a thin shell of truth stuffed with a lie.

It should be quite easy for her to prove how thin that shell is. Mass emails to more than 30 people would have to be common practice in a university where 391 staff is only a fraction of the employees.

This strikes me as selective enforcement of an overly broad policy. (Much like the Nazis used their anti-homosexual laws only as an excuse to target their political enemies.)

Anonymous said...

You all miss the point. If the e-mail content had not been critical of the administration, you would not have heard a peep from them. This is how authoritarian personalities think and act. I went to MSU and I am ashamed of this. They are now acting more like the U of M!

Anonymous said...

Mass emails to more than 30 people would have to be common practice in a university where 391 staff is only a fraction of the employees.

Of course they would be. But that would not be spam. Her email was unsolicited and therefore qualifies as spam under their definition of spam and the terms of use of the university email system.

They didn't say she couldn't send out a mass mailing. The policy restricts an unsolicited mass mailing, which this was.

You all miss the point. If the e-mail content had not been critical of the administration,....

You missed the point. Her email wasn't critical of the administration, it was critical of a new calendar for the academic semester.

Anonymous said...

A mailing such as "we're making a policy change" would be "solicited" yet an equally relevant "there are problems with the new policy" are somehow not?

An email which is critical of a decision made by the administration is somehow not critical of the administration?

Give me a break!

Are you that guy from the Nazi thread that has his own private definition of words which are different from that of almost every other English speaker in this country?

Anonymous said...

A mailing such as "we're making a policy change" would be "solicited" yet an equally relevant "there are problems with the new policy" are somehow not?

Of course there is a difference. An email from the administration (labeled as such) announcing a change in the calendar after studying the situation and taking input is relevant to everyone. An email using cultivated and gathered emails addresses from a person not known to anyone in the mass mailing is spam. There is also the difference in ownership of the email system.

An email which is critical of a decision made by the administration is somehow not critical of the administration?

That is correct. Or are you a person that believes that one cannot disagree with a person and not be critical of them? When you disagree with your wife, you mean that disagreement as a criticism?

Are you that guy from the Nazi thread that has his own private definition of words which are different from that of almost every other English speaker in this country?

Nope. Not the same person.

But back on subject. Are you really trying to say that the University does not have the right to limit mass mailings or to suspend priviledges on their private email system when the terms of use are broken?

If this mass mailing was a sexual joke, would you feel the same way? If the email was concerning sex with animals, would that be okay in your eyes? Would an advertisement for NAMBLA be acceptable in your view? Would a mass email of hard core porn be acceptable to you?

The precedent is clear. If you use a private email system, you must comply with their rules. As far as I know, no court in the United States has ever said anything other than that despite people such as yourself claiming otherwise.

Anonymous said...

First off MSU IS govt, if it is not than someone please tell me why I vote for regents for it.
I unfortunately have to agree with the person saying that MSU has a right to enforce their email rules. They may be selectivly enforcing them because of the emails content but she would have to somehow prove that. So in the mean time it is their email system and she must comply with its rules of use.

Anonymous said...

When people vote for a company's CEO or Board of Directors, does that mean they're govt?

Anonymous said...

What is the purpose of their email system. Is it to support communications in line with the university's business? That's practically a given. Discussing issues with the new university schedule is university business.

It's obvious that they're enforcing a speech code ("Never speak out against the administration.") that they know they could not get away with enforcing directly. Therefore, they're using an overly broad rule as an excuse to harass someone with the temerity to question the Great and Powerful Oz, errrr, Administration.

Anonymous said...

Is it to support communications in line with the university's business? That's practically a given.

It is not a given. It is to promote communication between university members within a set of guidelines. Part of those guidleines are that you cannot use the university system to spam others.

What you can't seem to grasp is that she harvested the email addresses of people and then used those addresses to send an mass mailing of unwanted and unsolicitated email. That is, by definition, spam.

When she got called into the carpet, she trotted out the deflection that it was a "restriction of her freedom of speech" to have her comply with the rules of the email system.

All she had to do was, according to the student manual and TOS of the email system was notify the system that she was sending out a mass mailing and its purpose. The university has stated that they would have approved the mailing because of its scope - not because of its content.

When she was told about the rule and asked not to break it, like a petulant child, she basically said "you're not the boss of me." She and people like you believe that she doesn't have to honor the agreement she signed when using the university's email system. Like you, she thinks that the university has to bend their rules because she doesn't like them.

After all, she's special and the rules don't apply to her.

This has nothing to do with the content of the message. Nothing. Her letter of reprimand only addresses the issue of her mass email and her failure to address that part of the violation. Nothing more, nothing less.

The University does not have to give her the platform she desires to espouse whatever she wants. They cannot restrict content, and in this case, they didn't. They applied the same specific rule to her email as they do to all mass emails.

If you want to back a whiney little child, go for it. Have fun. But at least get your facts straight before you start condemning the university.

Anonymous said...

"It is to promote communication between university members"

That's exactly what I said. In fact, my definition is a little more narrow than yours. The central purpose of a communication system is to facilitate communication among its users about university business. This would include communications about schedules, course content, student requirements, policies, etc. In any such system, administrators will typically permit some communications which fall outside that central purpose simply because it's too much work to do so. This would include personal messages, jokes, etc.

In this case, the message falls right smack into the central purpose of the communications system. It was a discussion of the university's schedule. Specifically, it was in relation to the public comment period about the schedule changes (you know, the period where the university asks for feedback on the proposed changes) which was due to end 15 days after this email was sent. In fact, a university cannot function without a schedule, therefore it's essential for university members to be able to communicate about that schedule. Thus, the reason for a communications system.

"within a set of guidelines."

Of course guidelines are needed. Some would be technical limitations, such as the need to avoid sending large files that could bring the system to its knees or allowing viruses to propagate. Other reasonable guidelines would be that harassment, name calling, etc. would be off limits.

"Part of those guidleines are that you cannot use the university system to spam others."

This is the central point being debated here; whether or not the policy itself is valid. You cannot argue in favor of a policy by pointing to the policy. That's circular reasoning.

"What you can't seem to grasp is that she harvested the email addresses of people and then used those addresses to send an mass mailing of unwanted and unsolicitated email. That is, by definition, spam."

That is their definition of "spam". And as I just pointed out, the argument is over whether or not this definition of spam is valid. So let's take a look at each component of the definition you used.

Harvested: This is simply a characterization. Every single email ever sent requires a destination address. That address must become known to the sender by any number of methods, including being told verbally by the address owner, received on a business card from the owner, found in a directory of email addresses published for the purposes of making those addresses known, found on a web site visited by the sender, or randomly collected by software spiders. The typical and customary definition of "harvested" is the final definition, where addresses are randomly collected in bulk via automated means from as many sources as possible with no regard for the legitimacy of using those addresses.

By your definition of "harvested", every single email you've ever sent has been spam because you "harvested" the email address to use in the email.

In this case, she would have gotten them from a directory published for the purpose of facilitating communications with the faculty. Which addresses where included in her list were carefully limited to those which were the most legitimate recipients of a legitimate communications: a subset of the faculty most affected by the schedule changes. She even worked with her committee, which included faculty and administration members, to make sure the list was appropriate. Her actions do not meet the criteria of indiscriminate "harvesting".

Mass mailing: We've already discussed this. In a university so large that 391 faculty members is only 8% of the total, mass mailings (meaning messages sent to more than 20 - 30 addresses) cannot be avoided, and almost certainly occur numerous times per day. Therefore, simple "mass" is not a valid criteria.

Unwanted: This is a bald, and untrue assertion by some administrators. According to the article, this email was put together in conjunction with the University Committee on Student Affairs which included faculty and administration members. There were obvious discussions among them, and not only was she never told that the email would be unwanted, according to the article, "[o]ne of the committee members even encouraged her to proceed." So based on her discussions with faculty prior to sending the email, she learned that it was not "unwanted". Once again, your criteria doesn't fit her actions.

Unsolicited: How do you define this? The typical and customary (and legal) definition of "unsolicited" is an email from someone with whom you do not have a prior relationship. If you receive an email from a business which you have never done business with before, then that is an unsolicited email. If you receive the exact same email from a business which you have purchased from before, then that is not considered to be an unsolicited email, even though you did not ask them to send it to you.

In this case, Ms. Spencer had a preexisting relationship with the faculty she sent the emails to. That relationship is their mutual membership in Michigan State University. It may have even been a closer relationship than that if she had prior contact with them, but the article doesn't say.

By your apparent definition of unsolicited, if you received an unexpected email from a friend for any reason ("Hey, wanna go see the game?" or whatever), you would consider that to be spam because you didn't ask them to send the email.

Not one of the criteria you used to call her email spam is legitimate or true.

"All she had to do was, according to the student manual and TOS of the email system was notify the system that she was sending out a mass mailing and its purpose. The university has stated that they would have approved the mailing because of its scope - not because of its content."

She did notify them:

"On September 14, Spencer notified UCSA that she would send a personal version of the formal response to faculty members."

So even by your reading of the rules, she obeyed them.

"After all, she's special and the rules don't apply to her."

On the contrary. My argument is not that the rules don't apply to her, but that they applied the rules only to her. "Rules for thee, but not for them or me" is not just, it is an illegitimate double standard.

"This has nothing to do with the content of the message. Nothing. Her letter of reprimand only addresses the issue of her mass email and her failure to address that part of the violation. Nothing more, nothing less."

As I've showed, she did everything possible to make sure her email complied, including the notification you mentioned earlier. The only remaining reason for the university to misapply an existing rule/create a special rule for her was because of the content. And as you noted, "They cannot restrict content," which is why they used "the rules" only in her case as an excuse to do what they couldn't otherwise get away with.

"But at least get your facts straight before you start condemning the university."

Right back at ya!

Anonymous said...

Of course guidelines are needed.
So when she breaks the guidelines, there is no penalty?

That is their definition of "spam".
No Ed, that is pretty much the standard definition of "spam." You are now trying to argue that the meaning changes as you want it to.

Harvested: This is simply a characterization.
Which doesn't change it's truthfulness. This was not a case where the people sent the email gave her the addresses. She harvested them.

Mass mailing: We've already discussed this.
Yes we have. And you keep trying to change the definition. She agreed to the policy that said anything over 30 emails in a singular mailing was considered a mass mailing. You now want to change that definition as it suits you.

She did notify them:
No, she didn't.

The "University Committee on Student Affairs" is not the correct body to notify.

On the contrary. My argument is not that the rules don't apply to her, but that they applied the rules only to her.
Except for one thing.... the University has applied this policy across the board and not just to this "special" woman.

As I've showed, she did everything possible to make sure her email complied, including the notification you mentioned earlier.
No Ed, you haven't. You accused me in another thread of being a person that changed definitions away from the accepted meaning. Although I was not the person you thought, it is clear here that to make your point, you must change the meanings of words to fit your narrow and wrongful view of this incident. She mailed spam contrary to the university stated policy and did not receive approval to do so.

You cannot defend what this woman did if you agree that the rules are in place. As you have agreed to the rules and their purpose, one can only conclude that you are so locked into your position that any logical argument will never persuade you of your folly.

Facts don't matter to you. Logic doesn't matter to you. All you see is a boogieman under every bed.

Enjoy your tinfoil hat.

Anonymous said...

"You accused me in another thread of being a person that changed definitions away from the accepted meaning."

How the heck am I supposed to tell who I'm talking to? "Anonymous" says absolutely nothing. Even a handle, while allowing you to hide your identity, could still allow readers to distinguish between different comment writers.

It's pretty clear that you've drunk the university koolaide.

As for me, I simply cannot accept a brain dead Zero Tolerance policy. Period.

Here is an interview with Ms. Spencer. There is some more very interesting information in this interview:

- The policy was decided over the summer and discussed with only a few of the faculty. Most faculty members did not even know about the proposed change because the administration did not tell them.

- Ms. Spencer received significant positive feedback from her email, including professors contacting her for more information. She says quite a few of them asked her why they hadn't heard of this proposed policy change before. In other articles, I found that one (that's ONE) professor complained. So 390 faculty members did not consider her email "unwanted", and only 1 did. And of those 390, we know that significantly more than 1 of them wanted to know the information in that email.

- A former network administrator was in contact with Ms. Spencer. He was mystified at the university's actions because they had not enforced this "spam" rule before. Apparently, it's common for mass unsolicited emails such as "Spartan [sports team] tickets are still available" to be routinely sent to far more than 30 people.

Bottom line: The university's "spam" rule is overly broad and unconstitutional and it's being applied in a highly selective and zero tolerance fashion to punish someone who spoke out against a policy the university administration was apparently trying to ram through under the radar.

There's plenty more I can say about the topics we've already discussed, but I can see that I would be wasting my time.

Anonymous said...

One more thing, MSU has a history of major authoritarian thought control. This is nothing new.

Anonymous said...

Poor Heck-the-so-called-man is in too many places at once and now he's lost control of his convoluted opinions.

Anonymous said...

So, other people and my own arguments are now exactly the same things?

Just, wow…

That's like answering "San Francisco" to the question, "How many feet are in a mile?"

You honestly expect me to take you seriously when you make such major category errors?

Anonymous said...

Even a handle, while allowing you to hide your identity, could still allow readers to distinguish between different comment writers.

No Ed, I accuse you of doing that which you accuse others of doing which is redefining terms to meet your standard of proof.

As for me, I simply cannot accept a brain dead Zero Tolerance policy. Period.
So you believe that the university does not have the right to control mass mailings using their mail system. You believe they do not have the right to hold people that deliberately break the rules they agree to accountable. That says more about you than anything.

- The policy was decided over the summer and discussed with only a few of the faculty.
You are confusing the issue here Ed. The policy which she broke by mailing 1200% more emails than allowed was made back in 2004. That is the policy that is in question. Stop trying to shift the goalposts.

Ms. Spencer received significant positive feedback from her email, including professors contacting her for more information.
So? I am sure that many people use penis enlargement emails and think they are informative. Once again you are trying to shift the goalpost away from the fact that she broke the stated and agreed to policy.

- A former network administrator was in contact with Ms. Spencer.
So your position is that a person no longer in charge of the network says that they never enforced the policy while on his watch. How does that impact the University currently enforcing their rules now? It doesn't, so this is another case of you trying to shift the goalposts.

Bottom line: The university's "spam" rule is overly broad and unconstitutional and it's being applied in a highly selective and zero tolerance fashion to punish someone who spoke out against a policy the university administration was apparently trying to ram through under the radar.
Of course whether the spam rule is overly broad and unconstitutional is Fire's contention and does not matter one iota.

The fact of the matter is that the policy is specific, tailored to meet the needs of the univeristy, and has been around for 4 years - longer than Spencer has been a student.

There's plenty more I can say about the topics we've already discussed, but I can see that I would be wasting my time.
Yes you would be wasting your time because it is clear that you cannot abibe by your own rules of concerning definitions. You cannot debate the facts. You cannot address issues that are raised. All you can do is sit there and say that a woman who agreed to a legal policy has the right to break that policy without consequences. Your constant attempts to shift the goalposts shows that you can't address the central issues here.

Spencer broke the rules, and apparently then told the administration that she would do it again. So they put a letter in her file.

She is upset that she can't get her way.

Wah. Wah. Wah.

Her defense and your acceptance of "you're not the boss of me" is ridiculous and indefensible.

Anonymous said...

I've been reading "The History of the SS" by G. S. Graber. I just came across a passage which immediately made me think of this argument:

"When tried at Nuremberg War Crimes Tribunal, and accused of having personally killed 150,000 people, he [Otto Ohlendorf] interrupted the prosecutor to contest this figure and to announce that in fact the figure was several hundred higher. This is probably the best example of Ohlendorf's amorality. It never occurred to him that human beings were the victims of SS tyranny. He was blinded by that characteristically Teutonic drive which considers that as long as a document was franked by an official stamp and bore a signature it was blessed with that authority which was its only prerequisite."

I am in no way accusing the MSU administrators of being Nazis. Nor am I saying that their actions in any way approach the level of amorality exhibited by the Nazis. I'm simply not equating them to Nazis, so stop thinking that right now.

What struck me about this passage, was that the Nazis clearly had a mentality that viewed "the papers are in order" as the only measure of whether an action was right or wrong. As we can see by this extreme result, such a measure is totally inadequate to distinguish between actual right and wrong.

What I keep seeing argued here is that MSU had their policies (papers) all in order, therefore, they are "justified" in prosecuting Ms. Spencer. As I've argued before, the central question in this whole conflict is whether or not their policies are actually valid. I contend that they are not.

(Yes. I know someone will take this post the wrong way and accuse me of calling the MSU administration Nazis. I have tried to be careful in making my point, but if someone chooses to deliberately misread what I've written, there is nothing I can do about it. It has happened before. It will happen again. I refuse to be silenced by willful "misunderstandings" of what I write.)

Anonymous said...

Frankly Ed, that is one of the most disappointing and disingenious posts I have ever read. You spend the majority of the post trying to say that even though you got the idea that the actions of MSU in this case was equilivant to that of the Nazis, you are not equating MSU to Nazis.

Look up in the sky Ed. I am sure that you'll see pigs flying.

What I keep seeing argued here is that MSU had their policies (papers) all in order, therefore, they are "justified" in prosecuting Ms. Spencer.

That is not what has been argued. For you to equate the MSU's policy and that of the Nazis shows that you don't understand what happened.

As I've argued before, the central question in this whole conflict is whether or not their policies are actually valid. I contend that they are not.

Yet you have never addressed the reasons why the policies are not valid.

Can you cite any law, case or ruling where the owner of a email system does not have the right to establish the terms of service for that system?

Can you cite any law, case or ruling where a person legally entered into a contract and then upon violating the terms of that contract, was not held to the penalties of that contract?

Try to obfuscate it all you want. Try to dodge the issues all you want with complaints of freedom of speech and comparrisons to Nazis, but the two central issues of this case are whether MSU has the right to determine the terms of service for their email system, and whether Ms. Spencer, after agreeing to those terms has the moral or legal right to break her contract with the school and then not expect the penalty.

Until you address those issues, your attempts at diversion, abfuscation, shifting the goalposts and labeling the school's actions equivilant to that of Nazis are empty words and empty thoughts.

By the way, your last post brings into play Godwin's law.

You lose.

Anonymous said...

See. I knew you would misunderstand/misread my post and miss the whole point.

Anonymous said...

"By the way, your last post brings into play Godwin's law.

"You lose."


I see you've heard of Godwin's law. But it's apparent that you don't know what it is or what it means. So let's look at that, shall we.

First up, Wikipedia:

"The law states: 'As a Usenet discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.'"

Godwin's law is interesting as much for what it doesn't say as for what it does. Notice, for instance, that it says nothing whatsoever about the validity of that comparison. Let's go back to Wikipedia for more:

"The rule does not make any statement about whether any particular reference or comparison to Hitler or the Nazis might be appropriate, but only asserts that one arising is increasingly probable. It is precisely because such a comparison or reference may sometimes be appropriate, Godwin has argued that overuse of Nazi and Hitler comparisons should be avoided, because it robs the valid comparisons of their impact."

In this case, I was not looking for comparisons to Nazis at all. It just happened to jump out at me while I was reading for other purposes. (I happen to find WWII interesting and now I'm reading up on the events leading up to it.) I'm fairly certain that I would have found similar comparisons if I had been reading up on other periods of history. In fact, I had already pointed to another category in a previous post where such thinking processes are applied: Zero Tolerance. If I had happened to read a relevant ZT story, then I would have used that instead, and with far less trepidation and expectation of misreading. Congratulations on meeting my expectations.

As kind of a corollary, last night I watched a two part episode from "The World at War" on "The Final Solution". (This was triggered by a posting on another blog about the Holocaust where the point was about understanding the horror of what happened. Since I know you won't believe me, here is the link.) It seems that most of the Jews were equally infected with the idea that authority and its rules are always to be obeyed, even when such rules are obviously wrong.

So let's go back to Wikipedia:

"However, Godwin's Law itself can be abused, as a distraction or diversion, that fallaciously miscasts an opponent's argument as hyperbole, especially if the comparisons made by the argument are actually appropriate. A 2005 Reason magazine article argued that Godwin's Law is often misused to ridicule even valid comparisons."

My central point is that blind adherence to "the rules" without regard for the legitimacy of those rules or their effect is wholly useless as a measure of the "justice" of their application. As such, the comparison is valid. In fact, I would have much preferred an example which did not carry the baggage of Nazism. But since I wasn't actively looking for an example, I used the one which smacked me upside the head when I crossed paths with it.

A Usenet FAQ on Godwin's Law also has some interesting things to say about trying to claim victory if your opponent brings up Hitler or the Nazis:

"5. What should I do if somebody else invokes Godwin's Law?

"The obvious response is to call them on it, say "thread's over", and declare victory. This is also one of the stupidest possible responses, because it involves believing far too much in the power of a few rules that don't say exactly what you wish they said anyway."


Well, would you look at that! What was I saying about the blind adherence to "rules"?

"6. "Hitler!" Ha! The thread is over!

"Nope, doesn't work that way. Not only is it wrong to say that a thread is over when Godwin's Law is invoked anyway … , but long ago a corollary to the Law was proposed and accepted by Taki "Quirk" Kogama (quirk@swcp.com):

"Quirk's Exception: Intentional invocation of this so-called "Nazi Clause" is ineffectual.

"Sorry, folks. Nice try, though."

Anonymous said...

"Yet you have never addressed the reasons why the policies are not valid."

Gee, don't arguments about the purpose of the email system, what is and isn't spam, the fact that she was in contact with members of the administration and faculty about the email prior to sending it, and that the subsequent affect of the mailing was almost entirely positive even ring a bell? Wow, your "Their Rules Rule" shield is impressive!

"Can you cite any law, case or ruling where the owner of a email system does not have the right to establish the terms of service for that system?"

I am not a lawyer. I don't even play one on TV. However, the folks at FIRE are lawyers, and here's what they have to say.

First, on whether or not the First Amendment applies:

As the Supreme Court noted in Healy v. James, 408 U.S. 169, 180 (1972), "[s]tate colleges and universities are not enclaves immune from the sweep of the First Amendment;" indeed, "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."

And from the same paragraph:

The Supreme Court has held that "speech concerning public affairs is more than self-expression; it is the essence of self-government," reflecting "our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (internal quotations omitted).

Ms. Spencer is a member of the University Committee on Student Affairs, a part of the student government which represents the students. If a student involved in student government is not part of "self-government" then who is?

As for the "content neutral" part of their argument, FIRE has this to say:

First, "content neutral" does not necessarily mean "constitutional." An unconstitutional restriction that restricts everybody is unconstitutional just the same; in fact it is worse because it restricts the speech of everyone. Federal courts have repeatedly held that "time, place, and manner" restrictions on speech must be "narrowly tailored" to serve substantial governmental interests. Ward v. Rock Against Racism, 491 U.S. 781 (1989). MSU's anti-spam policy is not even close to sufficiently narrow to meet this standard, and it's very, very difficult to see how prohibiting students from e-mailing faculty members without prior permission from administrators would ever be in service of a substantial interest at MSU.

In fact, the MSU policies fall into an a priori restriction of free speech:

According to the U.S. Supreme Court, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. 147, 150–151 (1969). MSU's policy, which requires a "license" from the university in that it prohibits sending more than about 20–30 e-mails without prior approval, and which explicitly prohibits such e-mails "for personal purposes, advertising or solicitations, or political statements or purposes," includes standards at its core that are far from narrow and far from objective. The policy therefore is unconstitutional.

"Can you cite any law, case or ruling where a person legally entered into a contract and then upon violating the terms of that contract, was not held to the penalties of that contract?"

Like I said, IANAL. I am, however, a businessman, and I'm well aware of contract issues. The most binding of contracts are those which are both valid and explicitly agreed to by both parties. On the other hand, it's common for invalid contracts to be nullified by courts for various reasons. My argument here is that this "contract" is invalid because it's enforced unequally and violates limitations imposed on the university by law and Supreme Court rulings. If you want to argue that she is bound by that "contract" you need to show that it's valid.

As for contracts which one party has not explicitly agreed to (such as shrink wrap licenses) the legal status of such contracts is not settled law by any means. Since I am unsure whether or not she explicitly agreed to MSU's definition of spam, this part probably doesn't apply.

"Try to obfuscate it all you want. Try to dodge the issues all you want…"

Details matter. Especially in a case like this. Bringing up the all the details is not "obfuscation". Just because you refuse to accept my arguments does not mean A) that I didn't make them or B) they're invalid.

You keep arguing that those are the rules, and that she's stuck with them, period. How about addressing the questions about the validity of those rules without hiding behind your "Dem's Da Rulez" shield, which is a form of circular logic?

Anonymous said...

Oh, and one more thing:

"The policy which she broke by mailing 1200% more emails than allowed was made back in 2004. That is the policy that is in question."

I've checked several sources (not just FIRE) and I did not see an indication of this anywhere.

Source?

Anonymous said...

I see you've heard of Godwin's law. But it's apparent that you don't know what it is or what it means. So let's look at that, shall we.

Okay..... from the very source you cited:
By 2007, The Economist had declared that "a good rule in most discussions is that the first person to call the other a Nazi automatically loses the argument." And in October 2007, the "Last Page" columnist in The Smithsonian stated that when an adversary uses an inappropriate Hitler or Nazi comparison, "you have only to say 'Godwin's Law' and a trapdoor falls open, plunging your rival into a pool of hungry crocodiles."

In this case, I was not looking for comparisons to Nazis at all.
Yet you found it compelling to compare the actions of MSU to Nazis and then try and say "gee, I don't mean anything by it."

Excuse me while I laugh.

Gee, don't arguments about the purpose of the email system, what is and isn't spam, the fact that she was in contact with members of the administration and faculty about the email prior to sending it, and that the subsequent affect of the mailing was almost entirely positive even ring a bell? Wow, your "Their Rules Rule" shield is impressive!

No Ed, you stated your OPINION on these items - an opinion without factual backing. All you have continuially tried to do is shift the goalposts and then complain when you have been called on it.

The purpose of the email system - as I stated, one of the purposes of the system was to disseminate OFFICIAL MSU information. You took that to be the same point as you were making, forgetting that she is not a part of MSU other than as a student. If her email was dissemination of official university policy, as you contend, why didn't she use a University generated list of addresses? Why not just say "I am going to mail this out and need a lost of professors on campus?" It is clear why. She KNEW her email was going to trip the system safeguards and didn't care. She, like you, felt that the rules she agreed to didn't apply to her. Furthermore, her email was not a dissemination of official policy, but rather a critique of a policy that had already discussed.

You keep repeating that she had gotten Univeristy approval. She had not. She even said she had not. She told members of the SGA that she was going to make a mailing. That is not the same thing as University approval.

"Approval" of the email changes nothing and is only based on her statements. If you want to argue that the email was "approved by many," I am sure that many would approve racial jokes, pictures of naked women and men, etc. Approval has nothing to do with the definition of spam as defined by the University and accepted in the real world.

I am not a lawyer. I don't even play one on TV. However, the folks at FIRE are lawyers, and here's what they have to say.

So your answer to the question is "no," right. The case you cite doesn't answer the question. It is just more shifting of the goalposts from you.

If you want to argue that she is bound by that "contract" you need to show that it's valid.

Huh? She signs a contract and then you want me to prove that it is valid? Sorry Ed, but even in business you know this isn't the case. She entered into a legal contract on her own free will. It is up to you to prove that it is illegal.

In trying to do so, you have once again shifted the goalposts. Your original stance was that the violation was based on the content of the email. Now you are saying that it isn't.

Details matter. Especially in a case like this. Bringing up the all the details is not "obfuscation". Just because you refuse to accept my arguments does not mean A) that I didn't make them or B) they're invalid.

Details do matter. While you argued that MSU couldn't control their email system, you forgot that the email system is a private entity. It is not a "public thoroughfare" which is one of the Supreme Courts requirement for unrestricted free speech.

You forgot that the policy gave specifics and instead tried to substitute what you felt was a reasonable number of emails rather than what the University had stated.

You tried to change the definition of "spam" when its accepted definition did not suit your purpose.

All these things are the "details" which you want to ignore.

Debating with you is like trying to pin Jello onto a wall - you keep shifting and squirming and never really addressing issues other than to restate what you BELIEVE as opposed to what is FACTUAL.

You keep arguing that those are the rules, and that she's stuck with them, period.

I keep arguing that she agreed to the rules and broke them.

How about addressing the questions about the validity of those rules without hiding behind your "Dem's Da Rulez" shield, which is a form of circular logic?

I have argued the validity of them Ed. The University has a legal right to limit emails on their private system. They have a legal right to make sure their email system is not being used for a purpose other than its intentioned use. They have a right to limit the financial impact on the system and the school by limiting mass mailings. The rule is not in any way onerous or overbearing and does not stiffle speech. Both parties receive a benefit from the policy and the contract. If Spencer thought the rule was so horrible, she had other options including getting the mass mailing approved, sending hard copies of the letter via the University mail system, etc.

The contract is valid, Ed.

Your "logic" has always been because she broke the rules, she doesn't have to abide by the penalty she agreed to. Your position is that because she does not like the rule NOW, that entitles her to break the rule at HER discretion.

In other words, your circular logic doesn't address the rule without changing meanings of words or applying your own standards. In doing so, you say "see, she can break the rules because I say she can break the rules because she broke the rules."

THAT is circular logic.

I'm done with this, Ed. It is clear that you became entrenched in a position and have felt it necessary to change your justification from one point to another and in doing so, accuse others of not listening to you.

Anonymous said...

So? What happened to giving the source for your claim that the administration had been working on this since 2004?

"By 2007, The Economist had declared that "a good rule in most discussions is that the first person to call the other a Nazi automatically loses the argument." And in October 2007, the "Last Page" columnist in The Smithsonian stated that when an adversary uses an inappropriate Hitler or Nazi comparison, "you have only to say 'Godwin's Law' and a trapdoor falls open, plunging your rival into a pool of hungry crocodiles.""

First of all, did you notice where your quotes came from: The Popular Culture section. In other words, they're describing the popular understanding of Godwin's Law not its actual meaning. However, earlier in the article, it had already been pointed out what the actual meaning is and that there are legitimate comparison to Nazis. Such legitimate comparisons override the popular understanding of Godwin's Law. It is illegitimate to select just a portion of the article and pretend that it overrides the parts which describe legitimate analogies.

Maybe you should have checked the source articles before you quoted them as "proof". There is an important edit in the quote from Smithsonian Magazin (The article in The Economist is premium content and unavailable without paying):

"And in common practice (other than in appropriate contexts, such as discussions of genocide), when an adversary tries it, you have only to say "Godwin's Law" and a trapdoor falls open, plunging your rival into a pool of hungry crocodiles. Sweet, no?"

You should also check out the name of the article? "In the Name of the Law — How to win arguments without really trying"

Then there's the tone of the article: a snarky listing of "laws" which are routinely abused.

Picking and choosing what you take from the sources is blatant dishonesty.

Your argument seems to be that the rules are valid because they existed before this incident, therefore it's legitimate to enforce them.

Rules -> valid -> because they're the rules.

That's circular logic.

As for the rest, we'll just have to wait and see, won't we?

Anonymous said...

Since you seem to have a mental block about Nazis, let's try these analogous stories:

"(November 1997) A Colorado Springs, Colo., school district says it did the right thing when it suspended 6-year-old Seamus Morris under the school's zero-tolerance drug policy. The drug? Lemon drops. Taylor Elementary School administrators called an ambulance after a teacher saw the boy give another student some candy, which was a brand teachers didn't recognize. "It was not something you would purchase in a grocery store," a district spokesman said. "It was from a health-food store." A spokesman for St. Claire's Lemon Tarts, however, noted that the candy is indeed sold in Colorado's largest grocery store chain. School officials were not impressed, and not only upheld the half-day suspension, but told the boy's mother that a child who brings candy to school is comparable to a teen who takes a gun to school. (UPI)"

Or try this one:

"A five-year-old girl has been suspended from kindergarten in Ocala, Fla., for violating a “zero-tolerance policy on items that resemble weapons”. Her weapon? A fingernail file. “We try and stress safety every day in school,” said principal Sonny Foster. “Where do we lay the foundation for education? We start in kindergarten.” (AP)"

Or how about this one:

"A Titusville man was just trying to do the right thing when he paid sales tax a store had failed to collect for a small purchase. But after paying the $1.50 tax, the state threatened the man with major fines and criminal charges."

And one more:

"Lindsay Brown had good reason to be excited. She was just weeks from her graduation from Estero High School. The honor student and National Merit Scholar had an academic scholarship to Florida Gulf Coast University and had spent the weekend moving into her own apartment. Everything seemed perfect until Monday afternoon when a security officer asked Lindsay to accompany him to the school parking lot.

The officer pointed out a kitchen knife lying on the floor of Lindsay’s car. She was surprised to see the knife and realize that it must have fallen out of one of her moving boxes. For unknowingly having the kitchen knife in her car, Lindsay was arrested, handcuffed, and hauled off to the Lee County jail. She was suspended from school and banned from graduation events."


Them's the rules. You break them, you pay. No exceptions. No brains.

There, no Nazis were used in these stories which illustrate the same concept. Are you happy now?

Anonymous said...

Here is another one:

"Unreasonable zero-tolerance standards make it certain that school officials will not make their disciplinary decisions based on sound judgment – and that some good kids will be punished for no good reason. Miles Rankin is one example of zero-tolerance’s collateral damage.

Twelve-year-old Miles Rankin was a victim of such a policy in Henry County, Georgia. After a student reported to his teacher that Miles had been showing his friends a 2 inch pocket knife in the school bathroom, Miles, a dedicated student with good grades , was handcuffed and taken away in a police vehicle -- in view of his classmates -- to a juvenile detention center.

At a hearing in juvenile court, Miles was shackled and handcuffed as if he were a dangerous criminal. The judge presiding over the hearing, who also happened to be the attorney for the school board, decided that Miles should remain in the detention center. Miles’s parents were only able to pick him up on conditional release the following evening, after he had been imprisoned for over 48 hours."


In addition, Miles was expelled from school for the rest of the year, placed under house arrest and a curfew for 30 days and probation for 180 days. For a freakin' pocket knife!

But hey, they're the rules. He can't break them just because he thinks they're wrong, can he? After all, he agreed to the contract! And the rules are "weapon (content) neutral" therefore they're valid, right?

Again, no Nazis were used in this example. Do you get the point yet?