University of Chicago Students are at War!

03 October 2014
Published in Blog

By Seema Iyer, Esq.

October 3, 2014

There is a war going on at University of Chicago on social media. And here’s the part that should concern you: Your own freedom of speech might just be a casualty in this battle.

Last week, University of Chicago students published The Hyde Park List, via Tumblr, with names of men who have allegedly committed “varying levels of gender-based violence.” This list, complete with color-coded threat levels, was quickly taken down. But as it seems as with so many things posted online, it reappeared a few days later. This time there were more names added and the list was soon circulated on the university’s campus.

In retaliation, the "UChicago Electronic Army" hacked into a student club’s website, targets one of the victims and promises to “rape harder.” Nice.

These students are at war with each other, albeit a war of words, yet one that raises the question – do we have the right to accuse, threaten or harass using social media as a shield and our language as the sword?

The First Amendment includes Freedom of Speech aka Freedom of Expression which allows us the ability to communicate our ideas and opinions through words or action without the government butting in. (I believe the technical term is ‘restriction.’)   Presumably the Hyde Park List was disseminated to warn, to inform and, perhaps also, to send a message that the University of Chicago was not doing enough to safeguard its students.

Here’s the thing: despite what many believe, freedom of speech does not mean the government can never stop you from saying certain things. No, our government can impose constitutionally permissible limits on freedom of speech in a few settings. For example, you can’t go running into a crowded movie theater and yell “FIRE.” That very point was made in the seminal 1919 U.S. Supreme Court decision of Schenck v. U.S. which tells us that you cannot incite actions that would harm others. Makes sense.

So what about the kids from UC? Who is protected by the First Amendment? The listmakers or the hackers?

The short answer is maybe both. The Hyde Park list on Tumblr enjoys more First Amendment protection because it is off school grounds. The problem arises when the list is displayed on campus. Speech in schools is often restricted-even with public schools.

Over the years the U.S. Supreme Court has ruled that the principal can prevent articles in the school newspaper from going to print (Hazlewood School District v. Kuhlmeier, 1988) and students can neither make potty-mouth speeches (Bethel School District #43 v. Fraser, 1986), nor encourage “bong hits” at school sponsored events (Morse v. Frederick, 2007).

Does this mean students do not have constitutional rights? No, they do. But just not to the same extent as adults.

For instance, when the students in the 1969 landmark case of Tinker v. DesMoines protested the Vietnam War by wearing armbands, the U.S. Supreme Court found in favor of the students. After all, political speech is the essence of Freedom of Speech; it will only be prohibited in a school setting if it disrupts the educational process.

So listmakers, Tumblr was the better choice. But before we address the hackers, it must be asked, did the listmakers consider a possible defamation lawsuit by the men on the list? I am all about taking justice into your own hands folks – just don’t get them too dirty.

Certainly the men will claim their reputations, relationships and vocations have suffered but alas ‘truth’ really is a defense. And I wager that none of the men will force the listmakers to prove up the accusations…..that only occurs when a statement is false…..I’m just saying.

Leading us to the obvious inquiry; are the men on the Hyde Park list the UChicago Electronic Army undercover or simply employed to do the dirty work? Akin to ‘murder for hire’ maybe now there are ‘Hackers For Hire’ - a techy team of hit men.

Nonetheless, was the UChicago Electronic Army’s post protected by the First Amendment? Considering they hijacked a student club’s website, the parameters of school regulated speech kick in. The hackers would have been better off making their violent, vile threats on social media the way the law now stands. The U.S. Supreme Court says only “true threats” are not entitled to constitutional protection. I regretfully acknowledge that “rape harder” appears to be a generalized threat, though the targeting of one of the victims does evince some actual intent.

This brings us to the SCOTUS fall lineup preview. The Supreme Court will be examining this precise issue, of intent in threats on social media in Elonis v. U.S. Mr. Elonis was prosecuted for rap lyrics, that read and sound like specific threats, on Facebook. But was that his intent? Or just some warped semblance of artistic expression? The lower courts said it does not matter. Will the Supreme Court agree? Stay tuned.

Remember there is a difference between what we can say and what we shouldn’t say. Every day that line is crossed online because it is so blurred. While one can rightfully claim Freedom of Speech does that give us the right to put others in fear? Not too long ago we didn’t have social media as a vehicle for vengeance or salvation. For some it voices a plea for help from a system that is failing them; for others it is a mask that both hides and spreads hate.   Either way, it is simply – Freedom.

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq