Colorado State University-Pueblo Vigilant Against Metaphor, Allusion, Unpleasant Historical References

Law, WTF?

Recently Colorado State University-Pueblo took strong and immediate action to contain what it suggested was a possible violent threat to campus. President Lesley Di Mare explained:

"Considering the lessons we’ve all learned from Columbine, Virginia Tech, and more recently Arapahoe High School, I can only say that the security of our students, faculty, and staff are our top priority," Di Mare said. "CSU-Pueblo is facing some budget challenges right now, which has sparked impassioned criticism and debate across our campus community. That’s entirely appropriate, and everyone on campus – no matter how you feel about the challenges at hand – should be able to engage in that activity in an environment that is free of intimidation, harassment, and threats. CSU-Pueblo has a wonderful and vibrant community, and the university has a bright future. I’m confident that we can solve our challenges with respectful debate and creative problem-solving so that we can focus on building that future together."

My God! Columbine? Virginia Tech? Arapahoe High School? What happened? Did somebody send a death threat? Did an angry student bring a gun to school? Were there rumors of a massacre?

No. A professor criticized staffing cuts and rhetorically compared them to historical abuses of power.

The professor is Timothy McGettigan, and he was upset about impeding layoffs spurred by budget woes. It's a controversial subject, with opponents arguing that the cuts are unnecessary. Professor McGettigan responded with a rhetorically flamboyant email to students and staff, comparing the looming cuts to the 1914 Ludlow Massacre, a bloody attack on striking miners and their families by Rockefeller-hired "security." McGettigan is vivid and impassioned:

The hitmen massacred those people. Coldly and methodically, the hitmen turned their guns
on women and children. The hitmen riddled the little tent village in Ludlow with bullets, and then they set that village alight. Amidst the screams of helpless, defenseless souls, the hitmen stood back and watched in satisfaction as the hopes and dreams of southern Coloradoans went up in smoke. That was a century ago. But what, if anything, has changed in southern Colorado?

. . .

In recompense for this unpardonable sin, CSU Chancellor Michael Martin has assembled a hit list. Today, Michael Martin is traveling to CSU-­‐Pueblo to terminate the 50 people who are on his hit list. In his own way, Michael Martin is putting a gun to the head of those 50 hard-­‐working people while he also throws a burning match on the hopes and dreams of their helpless, defenseless families.

Perhaps, like me, you think this rhetoric is overblown, even ridiculous. Perhaps, like me, you find it offensive, because it shows a public servant suggesting that he and other public servants are entitled to right to be paid with our tax dollars and that deprivation of that right is akin to murder. But even if the email is rhetorically execrable, it is not, by any stretch of the imagination, any sort of threat of violence. Rather, it's a historical reference, part of a millennia-old rhetorical tradition of condemning current policy by comparing it hyperbolically to past abuse.

Yet Colorado State University-Pueblo and President Lesley Di Mare have chosen, disingenuously and illegally, to treat it as a threat of violence. The university deactivated his email on the premise he had uttered a threat:

Hours after he sent the email, the university system removed his email account. A memo he received in printed form stated that the university had determined that he had violated a rule banning use of email to "intimidate, threaten, harass other individuals or interfere with the activity of others to conduct university business."

The memo from General Counsel Johnna Doyle spells it out:

MoronicMemoImage courtesy of Aaupcolorado.org.

This is perfectly ridiculous and unconstitutional. Because McGettigan is a public employee, the First Amendment places limits on a public university's ability to punish him for his speech. As the Ninth Circuit recently found, these public employee rights are at their most robust in the context of university professors debating public issues. The First Amendment does not protect true threats — that is, statements that a reasonable person would take as an actual threat to do violence — but it certainly does protect hyperbole and rhetoric that no reasonable person would take as a threat. McGettigan didn't even use a historical reference to a violent act to describe his own potential conduct; he used a historical reference to violence to describe what the university was doing. That's protected speech. It's not a close call. The actions of Colorado State University-Pubelo, President Di Mare, and General Counsel Doyle are lawless and frankly thuggish.

Such conduct is not new. Regrettably, too many modern university administrators and general counsel are a dishonestly censorious breed, bureaucrats like Di Mare and Doyle indifferent to constitutional rights and willing to invoke actual massacres and tragedies as insipid excuses to suppress dissent. Sinclair Community College invoked 9/11 and Virginia Tech to ban all protest signs. The University of Wisconsin-Stout invoked possible violence to ban a Firefly poster and a follow-up poster decrying government overreach. Front Range Community College comically demanded that students wanting to use a restrictive "free speech zone" sign waivers acknowledging the risk of death. Valdosta State University abused an expelled a student for a protest collage objecting to a new parking garage by claiming it was violent. These bureaucrats recognize the power of the cultural airhorn ""THINK OF THE CHILDREN!" and cynically invoke it to stop criticism. In doing so, the embody values antithetical to what a university should be.

Frankly I hope that someone uses vivid rhetoric to explain to Professor McGettigan that it's not violent to fail to pick my pocket to hire everybody he wants to hire. But first I'd like to see FIRE introduce President Di Mare and General Counsel Doyle to their little friend, the First Amendment. I'd like to see DiMare and Doyle meet the social consequences of lawless censorship. If you are so moved, send them an email.

Edited to add: FIRE sends a letter.

Last 5 posts by Ken White

55 Comments

55 Comments

  1. Hoare  •  Jan 21, 2014 @10:05 am

    She has published articles on American and Japanese communication styles, gender and communication, and rhetoric and persuasion.

    there ya have it …
    it was just "rhetoric and persuasion"

    roflmao

    http://www.colostate-pueblo.edu/presidentsoffice/Pages/default.aspx

  2. JTM  •  Jan 21, 2014 @10:17 am

    Good article, thanks for posting. FYI, the link to the professor's email isn't working.

  3. JTM  •  Jan 21, 2014 @10:40 am

    @me: "Good article, thanks for posting. FYI, the link to the professor's email isn't working."

    Never mind, it's also available through the AAUP site you linked to.

  4. Jay  •  Jan 21, 2014 @10:42 am

    I think Deputy General Counsel Johnna Doyle has been reading too many crime stories: http://www.amazon.com/review/RBLXRI8QV4Y4O

  5. Derailleur  •  Jan 21, 2014 @10:59 am

    It's more than a bit ironic to invoke Columbine and Virginia Tech in a missive essentially accusing a professor of making a threat by invoking the Ludlow Massacre.

    Shouldn't the president now have her email suspended for violating the electronic communications policy?

  6. Wondering  •  Jan 21, 2014 @11:25 am

    Good gravy.

    I think president Di Mare and general counsel Doyle need to go back to English class to relearn the basics of metaphors and comparisons. There is nothing at all ambiguous in that email that the comparison made was between the university as hitmen and the staff as victims.

    So, unless the president knows that the chancellor was actually going to be violent to the staff, there's no threat of current violence implied at all.

  7. C. S. P. Schofield  •  Jan 21, 2014 @11:36 am

    University Presidents, regardless of era, have a strong tendency to be pompous assholes. It's damn near a job requirement. And pompous assholes are seldom in favor of freedom of speech for anyone bury themselves.

    No, I don't think much of Woodrow Wilson.

  8. Quiet Lurcker  •  Jan 21, 2014 @11:42 am

    Assume someone complains to their local police/sheriff in that area that they're scared President di Mare was going to shoot someone and they were going to avoid the campus that day.

    How long would it take for the local prosecutor to charge the president with making an actual threat, and what would the school do? (sarcasm NOT intended)

  9. Ancel De Lambert  •  Jan 21, 2014 @12:39 pm

    But Ken, it's fully justified! After all, McGettigan interfered with Di Mare's ability to conduct business however the fuck she wants.

  10. AlphaCentauri  •  Jan 21, 2014 @1:03 pm

    Some forums have a policy of locking a thread if someone goes Godwin. Maybe in Colorado they have that policy about Ludlow? /sarcasm

  11. Dave  •  Jan 21, 2014 @1:05 pm

    Perhaps, like me, you find it offensive, because it shows a public servant suggesting that he and other public servants are entitled to right to be paid with our tax dollars and that deprivation of that right is akin to murder.

    I agree that the rhetoric is overblown and ridiculous, and further that likening the loss of a job to murder is offensive.

    But I would point out that, while he is a public servant, it is quite likely that McGettigan does not think of himself as one. Oh, Im sure he would recognize that he is if it is pointed out to him, but I expect he thinks of himself as an academic, a professor of whatever brand of basket weaving or bottle washing he happens to be expert in. That he happens to currently work at a university owned and operated by the state rather than a non-profit, is likely just happenstance to him.

  12. JTM  •  Jan 21, 2014 @1:25 pm

    I suspect that the University found the threat to be in one of the later paragraphs:

    "When the hitman returns today, the Children of Ludlow will once again be called upon to withstand the onslaught of a merciless enemy. I can't roll back the clock to help to children who died at the hands of pitiless hitmen a hundred years ago. But, I swear to God, I will not abandon the Children of Ludlow when they face the latest in a long history of hitmen who have terrorized southern Colorado."

    I expect the University would argue that the professor intended for his analogy (comparing budget cuts to murder) to extend to the kind of response needed to 'help' the victims (a violent one). There might also be a history between the University and the professor that influenced the University's decision.

    I think Ken's probably right that the University overreacted, and the University probably violated the First Amendment in doing so, but it might be a closer question than Ken thinks.

  13. Ken White  •  Jan 21, 2014 @1:43 pm

    JTM, I still don't see that it's close. He says he'll stand against them, but makes no reference to doing so violently. He uses "not abandon." If you infer a violent threat, you'd have to say that every time you use a historical allusion involving violence to describe someone else's conduct, you are necessarily threatening implicit violence yourself. That's ridiculous.

  14. JTM  •  Jan 21, 2014 @1:50 pm

    Like I said, I think you've probably got it right. But the University's going to say that there was at least some ambiguity, and that due to the gravity of the potential harm it was reasonable to disable the professor's access to his work email while they investigated. I'd expect to see him get his access back pretty quickly now that the University's getting some pushback.

  15. Jack B.  •  Jan 21, 2014 @1:52 pm

    But first I'd like to see FIRE introduce President Di Mare and General Counsel Doyle to their little friend, the First Amendment.

    Uh oh… now they're going to feel threatened because you're shouting "FIRE" in a crowded university.

  16. JTM  •  Jan 21, 2014 @2:04 pm

    One final thought – that this is the only professor against whom the University took action (when these kinds of layoffs cause lots of hot speech on campuses) suggests that the violent language really was the reason for the University's response (even if that response was unreasonable). Either that, or there's a history with this particular professor that we don't know about.

  17. TimL  •  Jan 21, 2014 @2:19 pm

    Is deactivating a work-associated e-mail account the same thing as oppressing speech/violating the First Amendment?

    Certainly, Prof. McGettigan has easy and abundant access to other e-mail providers, many of which are free.

  18. Caleb  •  Jan 21, 2014 @2:50 pm

    Legal issues aside, retaliating against the professor is also a monumentally stupid move PR-wise. The professor seems like the type who will regularly, readily, and dramatically play the victim card every chance he gets. Shutting down his email account gives him all the ammo he needs on that end. The Univ. President and GC should know this-it's blindingly obvious. How do people with such tone-deaf judgement get into positions of power in the first place?

  19. James Pollock  •  Jan 21, 2014 @3:40 pm

    The Univ. President and GC should know this-it's blindingly obvious. How do people with such tone-deaf judgement get into positions of power in the first place?

    A few things pop to mind. First of all, you get to be put in charge of a school by being good at academic politics and fundraising. Academic politics is not like the ordinary sort of politics.

    Second, it's a field that most people do not pursue. Sure, being president of, say, Harvard or Stanford has some cachet, but most college presidents are president of west podunk community college, and struggle constantly with budgetary problems. Doing a budget is almost always necessary but never ever popular. Midlevel management in the corporate world pays better for essentially the same work.

    Finally, there's some forest-and-trees going on here. The closer you are to a situation as it evolves, the more likely it is that it will catch you by surprise when it jumps containment and reaches the outside world… Even if you're a big-picture person, you can get caught up in tiny details and miss the big-picture ramifications of actions that are only supposed to have limited areas of impact.

  20. James Pollock  •  Jan 21, 2014 @3:48 pm

    I'm going to point out that it's not at all clear that there's a first-amendment problem here. The college owns the email servers and is not required to transmit whatever messages its employees choose to make.
    (Yes, limiting it in this way is both clumsy and dumb, but it DOES NOT have the effect of limiting the speech of anyone.) I ALSO do not have the ability to send mail from the college's mail servers. Nor, I'd guess, do most of you.
    Cutting off access to send email does have some effects, like cutting off internal distribution lists (there's probably an ALL_FACULTY list and an ALL_STUDENTS list that expands to include all currently applicable email addresses… a very handy way to reach all of those people. But again, the college maintains those lists for its own purposes and has no obligation to share them with anyone, even if it does make it easier to reach people.

  21. George William Herbert  •  Jan 21, 2014 @4:14 pm

    I disagree, James, it's a form of speech that the College gives to all its students and employees routinely, and uses for work and educational activity.

    I also would like to point out to those who think that the College had some legitimate fear of violence after that mail – that will not hold up in court or public opinion.

    If they legitimately felt he was making a threat of violence, he would have not been met in his office by a letter informing him of email suspension. He would have been met in his bedroom by the SWAT team.

    The lack of urgent police response, an arrest, and so forth makes it clear that they believed it was hyperbole and not a real threat. For them to go back and state otherwise is obviously false.

  22. Xenocles  •  Jan 21, 2014 @4:21 pm

    Certainly the given reason for taking action is bogus. But I'm very interested in this apparent right of public employees to call their bosses murderous scumbags before the entire agency and suffer no official consequences. Because I have a few things to say about a few people…

    (I feel compelled to remind the group that I am a member of a public employee class that can actually go to prison for saying those things, so as far as I'm concerned suffering administrative discipline is getting off light. But your mileage may vary.)

  23. Lokiwi  •  Jan 21, 2014 @4:26 pm

    The best part of the FIRE letter is where it points out that CSU-Pueblo deactivated McGettigan's email because of a "safety" issue, but allowed him to continue teaching on campus. Absolutely brilliant.

  24. Ken White  •  Jan 21, 2014 @4:36 pm

    @James Pollock

    I'm going to point out that it's not at all clear that there's a first-amendment problem here. The college owns the email servers and is not required to transmit whatever messages its employees choose to make.

    Several people have said this. I'd like to see some authority for the proposition.

    Can a public university provide email only to professors who donate to Democratic candidates, and turn it off for professors who donate to Republican candidates?

  25. James Pollock  •  Jan 21, 2014 @4:52 pm

    I disagree, James, it's a form of speech that the College gives to all its students and employees routinely, and uses for work and educational activity.

    And yet, if you dig, I'll bet that you'll find that the college, like private employers, has a policy in place that reserves the right to limit traffic flowing through their mail server(s), AND routinely actively limits traffic based on content (there's also definitely content-neutral limits such as size restrictions, but those are already Constitutionally-acceptable if based on a rational purpose.)

    In short, the fact that they routinely do something doesn't imply that they have a Constitutional requirement to do so, or to continue to do so in the future.

  26. Ken White  •  Jan 21, 2014 @4:56 pm

    In short, the fact that they routinely do something doesn't imply that they have a Constitutional requirement to do so, or to continue to do so in the future.

    They can certainly not provide email to anybody. But do you have authority for the proposition that they can selectively grant or withhold email to public employees depending on whether they like their speech?

  27. James Pollock  •  Jan 21, 2014 @5:15 pm

    Several people have said this. I'd like to see some authority for the proposition.

    Something close to 100% of academic email servers are operated under a policy that forbids the sending of unsolicted commercial email (it's included in most ISP terms of service, as well). A vast majority of email administrators make use of products that routinely scan, and discard without forwarding, messages that appear to be UCE.

    Can a public university provide email only to professors who donate to Democratic candidates, and turn it off for professors who donate to Republican candidates?

    Depends. How did the mail administrators find out who donates to which party? Is there correlation or causation involved, or was it a random happenstance? (For example, if an email virus has gone around that has the subject line "7 outrageous new taxes hidden in Obamacare!!!", it would probably spread far more widely amongst one set of partisans than the other, creating an effect similar to the one you posit, if the spam filter blocks accounts sending email virus automatically.

  28. gramps  •  Jan 21, 2014 @5:25 pm

    Perhaps this explains some of this…. Timothy McGettigan, PhD, is a professor of Sociology. He might equate staff reductions with murder because he knows the job opportunities in the private world for sociologists.

    It still doesn't explain/answer the earlier question about how do such dimwits get to be university presidents.

  29. James Pollock  •  Jan 21, 2014 @5:29 pm

    do you have authority for the proposition that they can selectively grant or withhold email to public employees depending on whether they like their speech?

    People who use the college's Internet access have agreed to do so under the university's terms, including abiding by the acceptable use policy (the student version, here: http://www.acns.colostate.edu/Policies/AUP

    The following are examples of non-allowed behaviors that are content-based:
    ■Accessing another person's computer, computer account, files, or data without permission.
    ■Using the campus network to gain unauthorized access to any computer system.
    ■Using any means to decode or otherwise obtain restricted passwords or access control information.
    ■Attempting to circumvent or subvert system or network security measures. Examples include creating or running programs that are designed to identify security loopholes, to decrypt intentionally secured data, or to gain unauthorized access to any system.
    ■Engaging in any activity that might be purposefully harmful to systems or to any information stored thereon, such as creating or propagating viruses, disrupting services, damaging files or making unauthorized modifications to university data.
    ■Performing any act, intentionally or otherwise, that will interfere with the normal operation of computers, peripherals, or networks.
    ■Making or using illegal copies of copyrighted software, storing such copies on university systems, or transmitting them over university networks.
    ■Harassing or intimidating others via electronic mail, news groups or Web pages.
    ■Initiating or propagating electronic chain letters.
    ■Initiating or facilitating in any way mass unsolicited and unofficial electronic mailing (e.g., "spamming", "flooding", or "bombing.").
    ■Forging the identity of a user or machine in an electronic communication.
    ■Saturating network or computer resources to the exclusion of another's use, for example, overloading the network with traffic such as emails or legitimate (file backup or archive) or malicious (denial of service attack) activities.
    ■Using the University's systems or networks for personal gain; for example, by selling access to your eID or to university systems or networks, or by performing work for profit with university resources in a manner not authorized by the University.

    Note that last paragraph under "enforcement": users are put on notice that "major infractions" will be met with immediate severance of network connections, with contact coming afterwards (and, presumably, due process after that).

    Even if Constitutional protections applied, individuals can waive them contractually, no?

  30. Grifter  •  Jan 21, 2014 @5:36 pm

    @James Pollock:

    Isn't it the case that none of that behavior would be protected speech, and a good portion of it would be a crime? Doesn't really seem analogous to "We didn't like it therefore we can punish you for it".

  31. AlphaCentauri  •  Jan 21, 2014 @5:42 pm

    As a public employee, would he even be permitted to advocate for a political party using university email? A legislator who wanted to do campaigning would have to leave the capitol campus and go across the street to use private facilities for that.

  32. James Pollock  •  Jan 21, 2014 @5:47 pm

    Isn't it the case that none of that behavior would be protected speech, and a good portion of it would be a crime?

    No, it is not. However, that's immaterial, as that's not the question I'm answering. The question of whether or not the college (or any other public agency) can limit email access based on whether or not "they like their speech" is not the same as whether or not specific speech is protected or not.
    Even leaving out the NSA, email messages are routinely read by automated systems that scan for email viruses and unsolicited commercial email, and take actions based on what they see in the message. That is, they are inherently content-based. This is legal because the owner of the network and the servers attached to it gets to decide what software runs on it, and what signals pass through it.

    Doesn't really seem analogous to "We didn't like it therefore we can punish you for it".

    I suppose it doesn't. But it's pretty darn close to "we don't like it, therefore we can decline to transmit it for you on our equipment."

  33. Ken White  •  Jan 21, 2014 @5:50 pm

    @James: Yes. Except the University didn't suspend him for unsolicited mass-emailing. It suspended him based on content. It did so explicitly, in writing. It then confirmed that was the basis of its decision in its public statement.

    (If it did suspend him for unsolicited mass emailing, then he might inquire whether that term is applied even-handedly, or only to content the university doesn't like.)

    You seem to be retreating from your earlier implication that the university can cut off email on any basis that it likes, because it need not give email in the first place. Are you still making that argument?

    (Before you answer, you might want to do adequate research on the unconstitutional conditions doctrine.)

  34. James Pollock  •  Jan 21, 2014 @5:54 pm

    As a public employee, would he even be permitted to advocate for a political party using university email?

    I considered raising this point, but didn't. Even the most partisan of partisans sometimes sends emails that have nothing to do with partisan advocacy. Even partisan traffic isn't always (prohibited) advocacy, although the line between informational messages and advocacy can be blurry.

  35. Grifter  •  Jan 21, 2014 @5:57 pm

    Them using their email to advocate for a party wasn't the question.

  36. James Pollock  •  Jan 21, 2014 @6:30 pm

    Yes. Except the University didn't suspend him for unsolicited mass-emailing. It suspended him based on content. It did so explicitly, in writing. It then confirmed that was the basis of its decision in its public statement.

    Had they suspended him for unsolicited mass-emailing, they would have done so because of the content of the messages. It would do so explicitly, in writing. It might even confirm this in a public statement. From this, you get my claim: The college CAN restrict emails sent through a college server based on content. Based SOLELY on its content. Note that the policy doesn't just ban spamming (UCE), but also flooding, which appears to be what he actually did.

    (If it did suspend him for unsolicited mass emailing, then he might inquire whether that term is applied even-handedly, or only to content the university doesn't like.)

    Perhaps. Reactions to UCE vary, with most actions being taken automatically without any human interactions, but based on notifications/complaints originating from recipients who didn't like them. Other actions are taken on longer-term accumulation of complaints. In either case, however, it is generally NOT the owner of the mail server who objects to the content, but rather downstream users. Although most ISP contracts contain limitations on email traffic, enforcement at the ISP level is almost all complaint-driven.

    You seem to be retreating from your earlier implication that the university can cut off email on any basis that it likes

    This is not my earlier implication, which is that the university MAY make, and DOES make, content-based decisions as well as many others, in deciding whether or not to transmit email, as is true of EVERY ORGANIZATION, PUBLIC OR PRIVATE, THAT OPERATES A MAIL SERVER AND RELATED SERVICES. I am claiming that the statement "the college may not make any content-based decisions regarding transmission of email" is false. They can and do. Note above where I noted that whether or not a particular result is acceptable or not depends on many factors.
    The CSU policy DOES seem to permit wide latitude in judgment to the college, specifically its academic computing staff. I'm assuming that it applies contractually, and that the staff/faculty policy is substantially similar.

    Note that the decision to suspend the employee and the decision to suspend the employee's email access are entirely different.

  37. James Pollock  •  Jan 21, 2014 @6:52 pm

    (Before you answer, you might want to do adequate research on the unconstitutional conditions doctrine.)

    Which parts of the CSU acceptable use policy do you believe to be unconstitutional conditions?

    Separately:
    If his name was on the layoff list before the email went out, does this brouhaha change anything?

  38. Ken White  •  Jan 21, 2014 @6:57 pm

    Had they suspended him for unsolicited mass-emailing, they would have done so because of the content of the messages. It would do so explicitly, in writing. It might even confirm this in a public statement. From this, you get my claim: The college CAN restrict emails sent through a college server based on content. Based SOLELY on its content. Note that the policy doesn't just ban spamming (UCE), but also flooding, which appears to be what he actually did.

    Content-based doesn't mean what you suggest it means. Banning unsolicited mass emails is not content-based. Banning only unsolicited mass emails with messages you don't like is content-based. You seem to be using some sort of tricksy version of "content" that treats "mass unsolicited" as content. That may be what you think it means. But that's not what it means.

    Reactions to UCE vary, with most actions being taken automatically without any human interactions, but based on notifications/complaints originating from recipients who didn't like them. Other actions are taken on longer-term accumulation of complaints. In either case, however, it is generally NOT the owner of the mail server who objects to the content, but rather downstream users. Although most ISP contracts contain limitations on email traffic, enforcement at the ISP level is almost all complaint-driven.

    That's irrelevant to this case, when the university informed him in writing that it was shutting down his email because of the content of his email and then announced publicly that its reason for shutting down his email. The fact that in some hypothetical situation the university might react to complaints of unsolicited mass emails, and that might lead them to decide to sanction someone for violation of the unsolicited email policy, is irrelevant. It also does not advance your suggestion before that, because a university need not offer email services, it can withdraw them for any reason it wants.

    This is not my earlier implication, which is that the university MAY make, and DOES make, content-based decisions as well as many others, in deciding whether or not to transmit email, as is true of EVERY ORGANIZATION, PUBLIC OR PRIVATE, THAT OPERATES A MAIL SERVER AND RELATED SERVICES.

    "Content-based" does not mean whatever you want it to mean. "No mass unsolicited emails" is not content based. "We will shut down mass unsolicited emails if they express a political view we don't like" is content based.

    I am claiming that the statement "the college may not make any content-based decisions regarding transmission of email" is false.

    Because you are playing Humpty-Dumpty with the term "content-based."

    I invite you to find authority supporting your argument.

    Note that the decision to suspend the employee and the decision to suspend the employee's email access are entirely different.

    They are different. But this is circular. What is the legal significance of the difference? The difference is not "because they only suspended his email and didn't fire him, they can do it for any reason they like." Again: if you think I am incorrect, I invite you to offer authority for that proposition.

    Otherwise this conversation is frustrating and I think we are finished.

  39. Ken White  •  Jan 21, 2014 @7:02 pm

    Which parts of the CSU acceptable use policy do you believe to be unconstitutional conditions?

    Why would a part other than the reason they explicitly cited and relied upon be relevant?

    James, our interaction is at an end.

  40. James Pollock  •  Jan 21, 2014 @7:09 pm

    One more I just thought of.

    Local government agencies maintain an "Emergency Broadcast Network", by which agencies may contact large numbers of local residents. It is a very effective method for reaching large numbers of locals, probably the most effective method. Is it unconstitutional to tell Sheriff's deputies that it may only be used for official purposes, and that a determination of what is official and what is not will be made by management?
    Conversely, if a deputy used the system without authorization but with a purpose clearly and unambiguously a matter of public interest, but one that affected the specific employee directly (a proposal to limit parking spaces next to the county courthouse currently restricted to police vehicles only), can the Sheriff discipline the deputy?

    If so, what is the difference between (deputy uses EBN to send unauthorized message, contrary to stated policy) and (Prof. uses email to send unauthorized message, contrary to stated policy)

    (Please note the difference between "can there be discipline?" and "is discipline 'X' the correct discipline to apply?". I do not argue that suspending a prof for a single incident of email flooding is the correct discipline.)

  41. Grifter  •  Jan 21, 2014 @7:44 pm

    James, you knew what Ken meant by "content-based". Further, you keep using non-analogous situations.

    The professor was not disciplined for using the email to deliver the message. He was disciplined for the content of his message. And, unlike an EBN, there are no restrictions for the sake of safety and use (the EBN, for example, can usually only be used by one person at a time and further, is ONLY to be used for emergencies–which is in no way whatosever analogous to here).

    Why the attempts at equivocation?

  42. Ken White  •  Jan 21, 2014 @7:45 pm

    Grifter, learn from my mistake and don't engage.

  43. James Pollock  •  Jan 21, 2014 @8:05 pm

    Content-based doesn't mean what you suggest it means.

    Banning only unsolicited mass emails with messages you don't like is content-based.

    The policy bans "unsolicited and unofficial emails. They ban unsolicited mass emails WITH MESSAGES THEY DIDN'T APPROVE.

    You seem to be using some sort of tricksy version of "content" that treats "mass unsolicited" as content.

    Well, "unsolicited" definitely refers to content, but that's truly a side point, as the key words are "and unofficial". They ban messages sent to all mailboxes on the server, if the message is not an approved message. Tricksy.
    I don't understand why you continue to spend so much time on the UCE prong when this is a case of flooding.

    Because you are playing Humpty-Dumpty with the term "content-based."

    Assuming that using it correctly is "Humpty-Dumpty", then yes. May I assume that you're sticking with the counter-argument that "mass unsolicited and unofficial electronic mailing" is somehow content-neutral? (and continuing the ignore all the OTHER content-based restrictions in the policy.)

    Finally, on the fact that schools are not required to offer email addresses. This is not, and never was, offered as proof that schools may limit access to email however they see fit. Continuing to act as if it was is an act of willful misunderstanding.

  44. James Pollock  •  Jan 21, 2014 @8:39 pm

    The professor was not disciplined for using the email to deliver the message. He was disciplined for the content of his message.

    He had his email turned off after he launched an email flood. That's a reasonable response to flooding.
    Then I reacted to a claim that this is a violation of the first amendment, because they did it based on the content of the message. But email administrators restrict traffic based on content rather routinely.
    For example, many administrators routinely strip attachments that have a .exe file extension (and several others, which indicate scripting languages. YMMV).
    They thought it would play better if they cited the threat section of the policy, which is stupid and clumsy. But he did, in fact, commit an email flood, which, according to policy, may justify suspension of an account with notification afterwards (assuming the faculty policy, which I haven't seen, tracks with the student policy, which I cited.)

    There is an argument to be made that his actions actually do fall under the section cited. (Because email floods are compute intensive on the server, they can delay processing of messages… although in a system the size of CSU's, any delay should have been trivial. So they fall under the "interfere with the activity of others to conduct university business", even though nobody involved thinks this is the section that was applied, and nobody here thinks any of this section should have been applied at all.)

    And, unlike an EBN, there are no restrictions for the sake of safety and use (the EBN, for example, can usually only be used by one person at a time and further, is ONLY to be used for emergencies–which is in no way whatosever analogous to here).

    Not so.
    Consider what it means to "flood" an email system. It means to generate a message which is placed in every inbox in the system. Note the wording of the policy on the subject, which bans mass unsolicited and unofficial messages. What are the legitimate uses of an email flood? In an academic setting, it's common to flood the mailboxes at the start of the term with a message that contains dates and deadlines. The other common use of a flood is to provide information about inclement weather, such as closures, alternate procedures, and the like. Also, in the wake of the Virginia Tech shootings, many schools implemented warning systems that use email floods (and SMS) to warn of imminent dangers on campus. Especially considering that many email systems today are part of unified messaging systems, the similarities with EBN are striking… in fact, EBN is moving closer to a unified model, as well. Amber Alerts, for example, can go out over EBN, and the highway message boards, and SMS flood, all at the same time.

  45. AlphaCentauri  •  Jan 21, 2014 @8:42 pm

    Them using their email to advocate for a party wasn't the question.

    Yes, it was a bit OT, but I was just wondering, since the question of blocking emails sent from public university accounts based on political affiliation had been raised in the comments.

    As far as the propriety of sending the email to the entire faculty, it's pretty standard for university professors to send emails to the whole faculty airing their gripes about administration. That's not considered spam. That's their version of Facebook posts. ;)

  46. Grifter  •  Jan 21, 2014 @8:49 pm

    @James Pollock (And with apologies to Ken for not heeding his excellent advice):

    Your objection holds no merit whatsoever, as the flooding is not the stated reason for their actions. Finding a loophole for them is meaningless sophistry, as their complaints were not based on that, but rather the actual content of his message (and, indeed, I wager that even if they'd said it was because of that it would be trivial to show that they don't enforce it except here, though admittedly that's an assumption, and is, again, irrelevant here).

    Your argument is akin to defending a cop who explicitly says he's arresting someone for being black, because you watched the video and it looked like the guy was maybe jaywalking. The complaint, and the discussion, is about the stated reasons, not the ones you have found on their behalf.

  47. James Pollock  •  Jan 21, 2014 @9:18 pm

    Your objection holds no merit whatsoever, as the flooding is not the stated reason for their actions.

    This would be true, if I'd ever claimed otherwise.
    Again, I responded to a claim that they can NEVER discipline an employee for ANY content-based complaint by pointing out that yes, they can shut off email, and further noting that not only is it done, it is done routinely and near-universally. Examine the use policy of pretty much any academic institution, and you'll find similar policies.

    To refine your analogy:
    "Your argument is akin to defending a cop who explicitly says he's arresting someone for being black, because you watched the video and it looked like the guy was maybe jaywalking."

    Hmm. I'd say my argument goes more closely to "yeah, saying you're arresting him 'because he's black' is stupid and clumsy, but pretending he was entirely blameless and should excape punishment for what he actually did is not right either."

  48. Grifter  •  Jan 21, 2014 @9:45 pm

    @James:

    1, That's not content-based. You know what Ken meant…you've been here before, and this discussion has been had before, as to what it means. Ken even re-explained it to you. "No spam" is, ostensibly, content neutral. So, you were responding to a claim by defending a claim that wasn't made.

    2, As Alpha Centauri noted, it's pretty common to send these "mass blast" emails in the university setting. If the cop ignores all of the hundreds of jaywalkers to ONLY harrass the black guy, the black guy IS blameless, because it's an unenforced rule that's only being enforced because he's black. Similarly, even if they fell back on that, when we know (or, to be fair, are farily certain) that they don't enforce it generally, it wouldn't be valid.

  49. Hal_10000  •  Jan 21, 2014 @9:59 pm

    I can't say that this surprises me. The response of universities to criticism of their policies is often, if you will forgive my violent rhetoric, to shoot the messenger. Notice what's happening to Mary Willingham at UNC. Remember what happened to Jan Kemp at UGa.

  50. Yon Anony Mouse  •  Jan 21, 2014 @11:58 pm

    Hateful jerk gets punished. Sadly, because of broader implications, you gotta side with the hateful jerk. Sometimes supporting the 1st Amendment sucks.

  51. JTM  •  Jan 22, 2014 @7:29 am

    @Ken: "They can certainly not provide email to anybody. But do you have authority for the proposition that they can selectively grant or withhold email to public employees depending on whether they like their speech?"

    Perry Educ. Ass'n v. Perry Educators' Ass'n (1983) 460 U.S. 37 seems applicable. School mail systems are not traditional public forums, but when they are opened to students or staff for expressive activities, the school may not discriminate on the basis of content or viewpoint. "In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view."

    I'm not aware of anything overturning Perry.

  52. Jay  •  Jan 22, 2014 @10:15 am

    Brief update: limited e-mail access restored. Story here.
    Still prohibiting mass e-mails from him, so they are still punishing him for his exercise of speech (on matters he is not required to report).

  53. g  •  Jan 22, 2014 @10:48 am

    I was so moved. Here's the email to the president's office:

    Your actions with respect to professor Timothy McGettigan vitriolic email are reprehensible.

    I find professor McGettigan's rhetoric overblown and ridiculous. I find it offensive, because it shows a net tax consumer suggesting that he and other tax consumers have a right to be paid with tax dollars and that any change to his comfortable employment status is akin to murder.

    But his email is not, by any stretch of the imagination, any sort of threat of violence. His use of historical reference is a millennia-old rhetorical tradition of condemning current policy by comparing it hyperbolically to past abuse.

    Your actions are lawless and frankly thuggish. They have attracted well-deserved attention, scorn, and ridicule. You bring disrespect to your office and the university and risk significant social consequences for your absurd over-reaction.

    Let me be clear; I am not threatening you or your thug lawyer. I am expressing an opinion about what you have done and the likely consequences of your actions.

    Partial restoration of his email privileges is insufficient. Now that you have shown the world your ignorance of free speech, justice, and proportionality, your only hope of salvation is an immediate and unconditional apology. You were wrong, you recognize it, and you humbly apologize to the professor and the very large community of people who care about free speech rights, a community who is now watching you.

    I very much doubt that you will do so. I expect you to double down or attempt to skulk away and remove any remaining doubt that Colorado State University – Pueblo is managed by thuggish, incompetent morons. I would be very pleasantly surprised to have that prediction and my opinions shown to be incorrect.

    It is your move. Make it a good one.

  54. Sertorius  •  Jan 22, 2014 @2:49 pm

    Their very response proves their concern is silly. If they *really* thought there was some sort of threat — that the professor was going to commit violence — then turning off his email is about the lamest, most ineffectual response one can imagine. All turning off his email does is prevent him from criticizing the University, which pretty much proves that is their only concern.

  55. AlphaCentauri  •  Jan 27, 2014 @4:33 pm

    The response to this incident has been taken to heart by other universities, I see. I just heard of one that is in the middle of difficult cutbacks (due in part to incompetent budgeting on the part of administration) which pre-emptively turned off the option of emailing to all faculty.

    Of course if a bunch of PhD's can't figure a way around that obstacle, they probably deserve to have their budgets cut.