Last January, we reported on the story of Tim McGettigan, a sociology professor at Colorado State University–Pueblo (CSU-Pueblo) who was an outspoken critic of the administration’s financial management. After CSU-Pueblo President Lesley DiMare informed faculty and staff in December 2013 that “as many as 50 positions at CSU Pueblo” could be eliminated to compensate for a $3.3 million budgetary shortfall, McGettigan sent out a series of mass emails to the CSU-Pueblo community passionately expressing his concerns and encouraging students and faculty to peacefully protest the planned layoffs.
But when McGettigan, in a January 17, 2014 email, invoked metaphorical imagery from the 1914 massacre of striking coal miners in Ludlow, Colorado, he found that the administration had run out of respect for his right to speak on matters of public concern. Upon returning to his office shortly after sending this email, McGettigan found a letter informing him not only that his latest email violated a university policy prohibiting “[u]se of electronic communications to intimidate, threaten, or harass other individuals,” but also that the situation was so severe that it warranted immediate suspension of his email access without any notice or opportunity to respond. President DiMare later offered the exceedingly lame justification that such immediate action was required to safeguard the campus community in light of “lessons we’ve learned” from school shootings at Columbine High School, Virginia Tech, and Arapahoe High School (in Centennial, Colorado).
FIRE wrote to President DiMare, explaining that McGettigan’s email was unquestionably protected by the First Amendment and that the assertion of safety concerns was manifestly absurd—particularly as the university took no steps to remove him from campus. CSU-Pueblo General Counsel Michael Nosler’s response summarily dismissed FIRE’s concerns and asserted that McGettigan’s First Amendment rights had not been violated. While McGettigan’s email access was restored shortly after we sent our letter, McGettigan remains unable to send emails to multiple recipients at once.
Nosler’s assertion that CSU-Pueblo did no wrong is now to be tested in court. McGettigan, represented by the civil rights law firm Loevy & Loevy, filed a federal lawsuit yesterday afternoon in the U.S. District Court for the District of Colorado. The complaint outlines McGettigan’s email activism and alleges that CSU-Pueblo violated university policy when it immediately suspended McGettigan’s email access in order to shut him up, and that it unlawfully retaliated against him by rescinding a previously approved sabbatical:
28. It was at this time, when the public’s attention to these important public issues was at its peak, that Defendant DiMare took it upon herself to silence Professor McGettigan. Less than an hour after reading Professor McGettigan’s “Children of Ludlow” email, and prior to Chancellor Martin’s public meeting, Defendant DiMare terminated Professor McGettigan’s access to electronic resources at CSU-P, including his email account. Defendant DiMare terminated Professor McGettigan’s access to electronic resources without any notice to him, without any attempt to confer with him, and without following CSU-P policies.
31. To shut him up at the very time when public attention to CSU-P’s budgetary issues was at its height was precisely Defendant DiMare’s goal. Defendant DiMare claims that she believed that Professor McGettigan’s “Children of Ludlow” email was a violation of CSU-P’s digital resource policies and posed a safety concern, but this was entirely pretextual: she took no action to address the threat that Professor McGettigan supposedly posed other than shutting off his ability to communicate.
34. Furthermore, less than two weeks after Professor McGettigan sent his “Children of Ludlow” email, Defendant DiMare rescinded approval of a one-term sabbatical for which Professor McGettigan had previously been approved.
35. Defendant DiMare’s actions were taken willfully, wantonly, in reckless disregard for the rights of Professor McGettigan, and they were taken in retaliation for his protected speech.
The complaint also alleges that CSU-Pueblo’s Computer Resource Access Policy is unconstitutional:
40. Specifically, the CSU-P Computer Resource Access Policy, in turn, provides that users of CSU-P computing and electronic resources “must not purposely engage in activity that may harass, threaten, or abuse others or intentionally access, create, store or transmit material which CSU-Pueblo may deem to be offensive, indecent or obscene ….” (emphasis added). Defendant DiMare has justified her unconstitutional actions toward Professor McGettigan by reference to this policy.
41. This policy is overbroad and violates the First Amendment of the U.S. Constitution, both on its face and as-applied to Plaintiff. The policy is also void for vagueness under the due process clause of the Fourteenth Amendment of the U.S. Constitution, both on its face and as-applied to Plaintiff, in that it fails to provide definite notice to individuals regarding what behavior is prohibited and invites arbitrary and discriminatory enforcement.
FIRE agrees—we give a nearly identical policy at CSU-Pueblo our worst, “red light” rating for restricting protected speech. Particularly egregious is CSU-Pueblo’s assertion that it can restrict any electronic speech simply because, in its sole discretion, it finds such speech to be “offensive” or “indecent.” In addition to running afoul of decades of Supreme Court precedent holding that offensive, and even indecent, speech is constitutionally protected, this policy also fails to provide any meaningful notice as to what speech may subject a student or professor to disciplinary action. How, indeed, is anyone supposed to know what CSU-Pueblo administrators “may deem to be offensive” at any given moment? Given the action taken against Professor McGettigan, it appears that the university’s determinations in this regard are dubiously flexible.
Finally, the lawsuit alleges that President DiMare defamed McGettigan in her statement to the media by “assert[ing] that Professor McGettigan posed the same kind of threat as the mass shooters at Columbine High School, Virginia Tech, and Arapahoe High School.” McGettigan’s lawsuit seeks damages and attorneys’ fees; a declaration that CSU-Pueblo’s Computer Resource Access Policy is unconstitutional and an injunction prohibiting its enforcement; and an injunction requiring CSU-Pueblo to restore McGettigan’s ability to send group emails. Read the full complaint on Loevy & Loevy’s website.
We will continue to bring you developments as they unfold, so be sure to check back with The Torch regularly!
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