[Text of letter sent to Princeton University]
August 15, 1996
Mr. Harold Shapiro
1 Nassau Hall
Princeton, NJ 85044
BY FACSIMILE, E-MAIL, & REGULAR MAIL
RE: Computer Use Policy
Dear President Shapiro:
In response to complaints we have received from members of the Princeton University community, we write on behalf of the American Civil Liberties Union (ACLU) and the American Civil Liberties Union of New Jersey (ACLU-NJ) to urge you to reconsider the policy prohibiting members of the University from using the Princeton's computer network for "political purposes." We believe that the policy is based on a misunderstanding of the law regarding the University's tax-exempt status, and restricts free speech and academic freedom rights guaranteed by Art. I, par. 6 of the New Jersey Constitution.
Princeton University's decision to offer its faculty, staff and students widespread access to the University's computer network and the Internet greatly expanded the resources available for academic research. It also provided a new and exciting forum for the free communication of ideas. In contrast, Princeton's decision to prohibit the use of the network for "political purposes" unjustifiably interferes with the right of the University community to exchange ideas freely, regardless of their content.
Princeton's current computer use policy holds that "the Computing and network resources of the University may not be used by members of the University community for commercial or political purposes or for financial gain . . . ." Trustees of Princeton University, Rights, Rules, Responsibilities 11 (1993) (emphasis added) (hereinafter "Rights," attached as Appendix A). On July 19, 1996, the Office of the General Counsel sent an e-mail to members of the University community warning them that any use of the Internet or computer network for "any participation in, or intervention in, (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office" would result in disciplinary action. See Office of the General Counsel, "Internet use and Politics," E-mail of July 19, 1996, attached as Appendix B.
We understand that the rationale behind the computer use policy is a concern that the University will lose its tax-exempt status, under Internal Revenue Code Section 501(c)(3), if it allows members of the University community to use the computer network for political purposes. We believe that this concern is misplaced, based on the policies and rulings of the Internal Revenue Service.
Internal Revenue Code Section 501(c)(3) provides that an educational organization will be tax-exempt as long as it "does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." The Internal Revenue Service has clarified that in order to constitute participation or intervention in a political campaign, the political activity must be that of the University itself and not the individual activity of its faculty, staff, or students. See Internal Revenue Service, Exempt Organizations Technical Institution Program for 1993 426-27 (1993), attached as Appendix C. Thus, any personal communication by University members over the computer network cannot threaten Princeton's tax-exempt status.
The fact that Princeton provides the computing facilities over which the communication takes place does not change this conclusion. The Internal Revenue Service has stated that a principal factor in determining whether the provision of university facilities to a group engaged in political activities will constitute participation in a political campaign by the university under Internal Revenue Code Section 501(c)(3), is whether the facilities are provided on an equal basis to groups using them for non-political reasons. Id. at 427. Princeton provides fair and equal access to the computer network, including e-mail and World Wide Web access, to all University members, and allows use of the network for a variety of non-political purposes. See Rights at 11. Thus, political speech over the network will not jeopardize Princeton's tax-exempt status.
Even use of the computer network for political purposes in connection with a particular course would not jeopardize Princeton's 501(c)(3) status. The Internal Revenue Service has previously held that a university that required its students in a certain political science course to participate in a political campaign of the student's choice for 60 to 80 hours during the semester was not participating in political campaigns within the meaning of Internal Revenue Code Section 501(c)(3). See Revenue Ruling 75-512, 1972-2 C.B. 246, attached as Appendix D.
In addition, student organizations are able to publish political views on the computer network without threatening Princeton's tax-exempt status. The Internal Revenue Service has held that a university was not participating in a political campaign within the meaning of Internal Revenue Code Section 501(c)(3), when statements made in support of political candidates appeared on the editorial page of a student newspaper. This was true despite the university's provision of financial support and facilities to the newspaper, as long as the views expressed in the newspaper were clearly those of the students and not of the university itself. See Revenue Ruling 75-513, 1972-2 C.B. 246, attached as Appendix E.
Accordingly, Princeton University does not risk its tax-exempt status by allowing University members to use its computer network for political purposes. We recognize that Princeton has a legitimate interest in ensuring that the individual views of its members not be mistaken for official positions of the University. At most, the only permissible regulation that Princeton might desire is one requiring a member of the University community, who uses Princeton's name in a way that could lead a reasonable person to interpret the author's statement as an official position of the University, to include a disclaimer clarifying that the opinions expressed over the computer network are those of the author alone. Compare Rights, "Guidelines Relating to the Tax-Exempt Status of the University and Political Activities," at Section 3.
Because there exists no legitimate reason for Princeton's blanket prohibition of political speech over the computer network, it is an unjustified, content-based restriction on the free expression rights of students, faculty and staff. Therefore, the policy is not only unworthy of a great University like Princeton, it is in violation of Art. I, par. 6 of the New Jersey Constitution.
Although Princeton University is not a state university, the New Jersey Supreme Court has held the Princeton University campus to have been sufficiently devoted to expressive uses so as to require the University to honor the State constitutional guarantee of free expression.
See State v. Schmid, 84 N.J. 535, 564-65 (1980); see also New Jersey Coalition Against the War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994) (holding that regional shopping malls were sufficiently open to expressive use so as to extend state constitutional right to leaflet). Princeton's computer facilities are as much a part of the Princeton "campus" as are the lawns and buildings. Princeton may not constitutionally restrict its students, faculty, and staff from engaging in political speech over the Internet any more than it could prohibit them from engaging in such speech in the dorm rooms, classrooms, halls, lawns, and offices of the campus.
Political expression has always received the highest degree of constitutional protection. See Buckley v. Valeo, 424 U.S. 1, 14 (1976). The Constitution was written with the intention to protect from censorship those who wish to express their political beliefs and their support for political candidates. Indeed, "where political speech is involved, our tradition insists that government `allow the widest room for discussion, the narrowest range for restriction.'" State v. Miller, 83 N.J. 402, 412 (1980). As a school with a well-deserved reputation as a leader in American higher education, Princeton should be the first to promote and defend academic freedom and freedom of expression within its community, to the very limits of the law.
The computer use policy, read literally, also infringes upon the free speech rights of Princeton faculty, staff, and students to receive information. Lamont v. Postmaster General, 381 U.S. 301, 307 (1965) (right to receive information precludes government from labeling certain publications "propaganda") (Brennan, J., concurring); Griswold v. Connecticut, 381 U.S. 479-482-83 (1965) ("right of freedom of speech . . . includes not only the right to utter or print, but the right to . . . receive, the right to read . . . and freedom of inquiry, freedom of thought, and freedom to teach . . . . Without these peripheral rights the specific rights would be less secure."); Kreimer v. Bur. of Police for Town of Morristown, 958 F.2d 1242, 1350-55 (3d Cir. 1992) (listing cases). This is because the University's computer facilities, although located on the Princeton campus, are a gateway to a virtual, worldwide community. See ACLU v. Reno, 1996 U.S. Dist. LEXIS 7919 (E.D. Pa., June 11, 1996). They provide a unique means for students, faculty, and staff to access information on virtually any topic, including politics.
Finally, the computer use policy is in conflict with other University policies and practices.
Princeton recognizes that the central purposes of a University are the pursuit of truth, the discovery of new knowledge through scholarship and research, the teaching and general development of students, and the transmission of knowledge and learning to society at large. Free inquiry and free expression within the academic community are indispensable to the achievement of these goals. The freedom to teach and to learn depends upon the creation of appropriate conditions and opportunities on the campus as a whole as well as in classrooms and lecture halls.
Rights, Introduction to "Principles of General Conduct and Regulations."
With respect to political speech, the University also recognizes that it has a fundamental responsibility to ensure the opportunity for all members of the University community to exercise their prerogatives as citizens. . . . Encouragement of an interest in public affairs and the furthering of a sense of social responsibility have long been considered important elements of a liberal education. The University continues to consider self-chosen participation in political and social action by individuals and groups to be a valuable part of the educational experience it seeks to encourage. Such activities on the part of individuals or groups do not, and should not be taken to, imply commitment of the University to any partisan political position or point of view.
Rights, Introduction to "Guidelines Relating to Tax Exempt Status."
For all of the above reasons, we strongly urge you to repeal the existing ban on use of the computer network for political purposes, and we look forward to your early reply.
Ann Beeson, Staff Attorney
American Civil Liberties Union
National Legal Department
132 West 43rd Street
New York, New York 10036
David Rocah, Staff Attorney
American Civil Liberties Union of New Jersey
2 Washington Place
Newark, NJ 07102
cc: Office of General Counsel