Debate over anonymous comment posting on school news site raises familiar First Amendment issues

In a story first reported by the Roanoke Times and picked up by the Washington Post in today’s edition, Virginia Tech’s student newspaper is at odds with the University Commission on Student Affairs over its practice of allowing anonymous comments to be posted on its website. The commission — an advisory body comprising students, faculty, and staff — has recommended that unless the paper changes its policy regarding online comments, the school’s administration should withdraw the roughly $70,000 in funding the Collegiate Times receives through its parent organization, the Educational Media Company at Virginia Tech (EMCVT). As an organization independent from Virginia Tech, EMCTV and the newspaper do rely on school funding alone, but the commission has also suggested it might ban student organizations on campus from buying advertising in the paper, and that loss of revenue would threaten the paper’s survival. The disagreement has raised a variety of policy and legal issues, notably including constitutionality claims under the First Amendment, which on balance seem to suggest that the paper is on defensible ground, but that the school can likely get its way.

While some have raised issues about the inconsistency of the online posting policy itself (the paper’s editors do not accept anonymous letters to the editor, for instance, but do allow anonymous comments on the website), given the educational setting of the case, the core issues boil down to the ability of the school administration to control speech associated with the paper and the legal validity of Virginia Tech’s Principles of Community, which some anonymous contents posted in the past allegedly violate. Legal precedents established over the last 20 years or so generally side with educational administrators on the ability to censor some kinds of speech in any school-sponsored endeavor, not just publications, and also have found university codes of speech and even anti-harassment policies to be unconstitutional.

Prior to 1988, the most relevant legal standard in First Amendment issues in educational settings was Tinker v. Des Moines Independent School District (393 U.S. 503 (1969)), in which the Supreme Court ruled that student expression was speech protected under the First Amendment, and was generally applied to mean that school administrators could not prevent student speech on the basis of its content. In 1988 however, the Court more or less made a complete reversal in Hazelwood School Dist. v. Kuhlmeier (484 U.S. 260 (1988)), ruling that school administrators could in fact censor a school-sponsored newspaper. The role of the school as sponsor or publisher is important in Hazelwood, because the Court drew a distinction between “activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school” and those that are independent from it. Despite the formal ownership and funding structure of the Collegiate Times, it seems hard for the paper to argue that it so independent from Virginia Tech that content produced by the publication would not be associated with the school. On this issue, Virginia Tech has the law on its side.

However, before the commission or the school declare victory in this matter they might want to firm up the basis of their objections to the paper’s policy. By objecting to the use of anonymous posting to make comments that run counter to the Principles of Community, the commission puts the principles themselves at the heart of the dispute, and campus speech codes and other policies similar to Virginia Tech’s Principles of Community have repeatedly been found unconstitutional when challenged in court. As objectionable as the idea sounds, the administration might be on firmer ground if it followed through on its threat to prohibit student organizations from advertising in the paper.