Just a handful of days after the RIAA sued four students at other universities, Penn State's Executive VP and Provost Rodney Erickson sent an email to 110,000 people at Penn State, in which he warned about the evils of copyright infringement. Penn's student-run newspaper reports here.
According to the article, among the self-help methods employed by the University is a 1.5 GB limit on each user's weekly Internet transmissions. In order to limit copyright infringement, in other words, Penn State limits free speech -- to roughly 1.5 GB every seven days.
Some students at Penn State are worried about their rights to free speech. And understandably so -- these restrictions raise First Amendment concerns.
Penn State's Internet use policy can be categorized as time, place and manner regulation of speech. This type of regulation does not limit speech, per se, but, rather, the context in which speech occurs. So, the government might, for instance, tell you that you can't protest in front of a school during the school's hours of operation. The purpose of such regulation would not be to eliminate speech per se, but to prohibit speech that, because of its timing rather than content, would hamper the school’s ability to operate.
The burden that such regulation imposes on speech, in turn, should be entirely incidental to the primary goal of the regulation. In the school case, the primary goal would be the elimination of sound that interferes with classes, not the elimination of speech per se. Protesters would be able to picket after classes end, and should, presumably, be free to say (almost) whatever they want.
Penn State's regulation, however, very clearly aims to limit speech, not merely its context. Erickson has admitted as much. The regulation's purpose, said the Provost, is to eliminate copyright infringement.
The burden that Penn State imposes on speech is not incidental, then, but direct and deliberate. The policy violates one of the cardinal checkpoints of time, place and manner regulations.
And there are a few other problems with the restriction.
In Court, time, place and manner regulations must pass intermediate scrutiny, a standard which requires that the regulation at issue serve an important government interest, is narrowly tailored, and does not burden speech any more than necessary. Penn State’s regulation does not pass the last two prongs of the test.
First, the regulation is not narrowly tailored, for it does not eliminate *only* material that is copyrighted and illegal to download. Rather, it eliminates all speech -- "good" and "bad" -- that each user would download/upload beyond the allotted 1.5 GB.
Second, it is not at all clear that this is the least speech-restrictive method of diminishing copyright infringement. What's magic about 1.5 GB? Maybe 2.0 GB is an equally effective quantum of transmission? If so, then Penn State's current policy is *not* the least speech-restrictive method.
Further, if Penn State can impose a contractual limit on the way university members use the Internet, could it not, instead of limiting transmission, impose a contract that obligates users to avoid illegal downloads/uploads? Is this not a less restrictive alternative?
In answer to these charges, Penn State might argue that Internet access is merely a privilege the university grants to its members, and that, therefore, the institution naturally has the discretion to regulate the scope of the privilege. Moreover, Penn State might respond by saying that users can connect to the Internet via private ISPs, and that the restriction thus leaves open other, ample channels of communication. If you don’t like Penn State’s restrictions, go elsewhere.
There is a serious problem with this defense. This line of argument, however plausible, would set a harmful precedent that other educational institutions could utilize in order to limit Internet access. And, if accepted, it would be somewhat ironic. Educational institutions -- particularly state-run educational institutions -- should promote, rather than chill, free speech.
It’s not clear whether students at Penn State are taking legal action against the University. Given the foregoing objections, however, and given the implications of Penn State's affirmative defense, perhaps they should.