Faculty Email Restrictions and Free Speech: Faculty Rights Coalition v. Shahrokhi (5th Cir. Nov. 2, 2006)

Commercial v. Noncommercial Speech. The dispute in this case differs in several critical respects from
the fact scenario U.S. District Court Judge Sam Sparks, and the Fifth Circuit, were presented with in White
Buffalo Ventures LLP v. University of Texas at Austin. In White Buffalo, the issue was commercial speech sent to
account holders on a state university’s email system by an for-profit entity unaffiliated with the university. The
messages thus came within the scope of UT’s policy prohibiting solicitation of business on campus (or through
university facilities, such as IT networks). Here by contrast, the speech addressed issues of individual civil
rights, labor and employment rights, university governance, and institutional performance. Such speech is
clearly not commercial. Most if not all of which satisfies the definition of “matters of public concern” under well-
settled first amendment jurisprudence. The only activity that could arguably be construed as solicitation was the
recruitment of would-be members if a yet to be founded part-time faculty union. While the unionization of
adjuncts may properly be characterized as a political objective, and has as one of its goals better compensation
of contingent academic workers, such an organizing effort clearly is not a commercial proposition.

Campus-affiliated Speakers vs. Outsiders. Contrary to White Buffalo, the parties whose speech was
interfered with by university administrators were members of the university community and account holders on
the university’s email system; The Fifth Circuit held that the distinction between members of the university
community and strangers (i.e., members of the general public) is relevant in its decisions addressing the rights
to abortion opponents on campus, the nature of that forum, and the University’s burden in justifying restrictions
on the freedom of expression under the First Amendment. See Justice For All v. Univ. of Texas.

Blocking of Message Traffic v. Regulation of Electronic Communications. In White Buffalo, the
University blocked out all email originating from a specific off-campus IP address. In Faculty v. Shahrokhi,
however, the restrictions imposed by the University took a variety of forms: (1) blocking of distribution of
messages to all account holders, but not of individual email messages (“prohibit-post”); (2) denial of ability to
send messages, but not to receive messages (“prohibit-send”); (3) temporary denial of access to accounts (“log-
on denial”); (4) interception and quarantening by the university’s spam filter of messages sent from sources
outside the university’s IT system to account holders on the university’s system (“filtering”). In White Buffalo, the
University of Texas did not merely filter spam, but prevented delivery of all incoming email from White Buffalo’s
domain. It did not offer account holder the option of retrieving the intercepted messages upon notification.

This case thus offers the Court of Appeals for the Fifth Circuit an opportunity to separately address by what
means, if at all, university administrators may restrict electronic speech by members of its faculty, and to
continue to develop the jurisprudence on issues of very first impression it broke new ground on in White Buffalo.

Do Adjunct Professors Have the Right to Pursue Unionization Via their Campus Email
System? The adjunct professors in Faculty v. Shahrokhi also allege that the University denied them their
freedom of association under the First Amendment by impeding, censoring, and suppressing communications
advocating the idea of forming an adjunct faculty union to push for higher pay, medical insurance coverage, and
improved working conditions. The Adjuncts claim that use of the university's email system is the only efficient
and workable means to reach all of their would-be members because adjuncts are on campus only part-time, do
not have individual offices or designated phone numbers, and are excluded from the Faculty Senate. Adjunct
professors are not represented in the shared governance structure and do not attend meetings. They are
difficult to contact in person outside their classes, and are thus also difficult to organize. The claim that the
university's email system constitutes the only viable forum for communication among adjuncts is bolstered by the
University's failure to release the private email addresses of adjunct faculty members in response to an open
record request. The University released only the official university email addresses of adjunct faculty
members pursuant to the Public Information Act.

The Challenged Restrictions

Mailbox disk space limitation: 20MB (ability to send denied when exceeded)

Denial of access to adjunct faculty email accounts during the summer (no log-on)

Denial of ability to distribute email to all account holders (no posting)

Interception of email messages sent from private accounts to university account holder
by University's spam filter.

Other Issues Presented

Constitutionality of Univeristy policy and Texas statute restricting labor unions
and prohibiting collective bargaining at state universities

Constitutionality of ban on labor organizing by non-citizens

Does the treatment of adjuncts as second-class citizens violate the Equal Protection Clause?