MEMORANDUM by sofiaie

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									MEMORANDUM

TO:            University IT committee, Associate Deans for Academic Affairs, Tim
               Luckadoo and Stan North Martin

FROM:          David Drooz, Rhonda Sutton, Sam Averitt

DATE:          May 12, 2003

RE:            NC State Computers and Pornography



       Some NC State computer labs post notices that prohibit viewing of pornography.
Other public computing facilities at NC State leave the matter to user discretion. There
have been complaints that pornography on computer monitors in public areas amounts to
harassment, and counter-arguments that such displays are constitutionally protected free
speech. We offer the following advice on these issues.

    1. NC State generally allows “personal use” of university computing facilities. See
       section III of the Computer Use regulation at
       http://www.ncsu.edu/policies/informationtechnology/REG08.00.2.php

    2. Given the decision to allow personal use, NC State cannot prohibit users from
       accessing lawful content (although employees can be restricted as to uses made
       during work time – the State is not paying our salaries to support non-work Web
       surfing). In legal terms, the First Amendment prohibits content-based restrictions
       once the computing system is established as a “limited public forum.” The
       network and computing systems are a “limited” forum in the sense that only
       authorized users may access them, but they are a “public” forum in the sense that
       we allow personal use by those authorized users.

    3. Lawful content includes sexually explicit material that is not pornographic, and
       also includes some pornography. However, pornography loses its constitutional
       protection under the law in three situations:

           a. Child pornography (criminal offense to possess or distribute – this
              includes accessing it by computer)1

1
  For example, G.S. 14-190.17A provides in part: “(a) Offense. -- A person commits the
offense of third degree sexual exploitation of a minor if, knowing the character or content
           b. Obscenity (criminal offense to distribute)2
           c. Sexual harassment3 (civil liability under non-discrimination laws)4

    4. Display (or communications or conduct) of a sexual nature can be sexually
       harassing when it is unwelcome (i.e., it offends someone), and it is so “severe or
       pervasive” that it unreasonably interferes with a person’s ability to do his or her
       job or academic work. The legal standard is whether a reasonable person in the
       particular circumstances would be offended. For example, a “captive audience” is
       more likely to prevail on a harassment claim than someone who can avoid the
       offending matter. It’s not clear in the law that pornography or other sexually
       explicit material displayed on a monitor in a public lab is harassing if students are
       offended when they have to walk by it to get to other machines. Each case will
       turn on specific facts, and the legal standards are subject to change.



of the material, he possesses material that contains a visual representation of a minor
engaging in sexual activity.
(b) Inference. -- In a prosecution under this section, the trier of fact may infer that a
participant in sexual activity whom material through its title, text, visual representations
or otherwise represents or depicts as a minor is a minor.
(c) Mistake of Age. -- Mistake of age is not a defense to a prosecution under this
section.”
2
   For example, G.S. 14-190.1 provides in part: “(a) It shall be unlawful for any person,
firm or corporation to intentionally disseminate obscenity. ….
(b) For purposes of this Article any material is obscene if:
  (1) The material depicts or describes in a patently offensive way sexual conduct
specifically defined by subsection (c) of this section; and
  (2) The average person applying contemporary community standards relating to the
depiction or description of sexual matters would find that the material taken as a whole
appeals to the prurient interest in sex; and
  (3) The material lacks serious literary, artistic, political, or scientific value; and
  (4) The material as used is not protected or privileged under the Constitution of the
United States or the Constitution of North Carolina.
….
(d) Obscenity shall be judged with reference to ordinary adults except that it shall be
judged with reference to children or other especially susceptible audiences if it appears
from the character of the material or the circumstances of its dissemination to be
especially designed for or directed to such children or audiences.”

3
  It is possible in some cases that material related to sex will not be pornographic (i.e.,
not intended to be sexually arousing) but it still could be harassing.
4
  This is also addressed in University policy. See
http://www.ncsu.edu/policies/campus_environ/non-discrimination/POL04.25.3.php
    5. The university has a legal duty to prevent sexual harassment. The university also
       has a legal duty to uphold free speech rights.

    6. People who administer public or shared computing facilities can take either of two
       approaches.

           a. First, do not prohibit users from viewing sexually explicit material or
              pornography. You may, however, post information on how to lodge
              harassment complaints5, and then you will have to judge each situation
              individually. That process is best done by consulting with the Assistant
              Vice Provost/Director of Harassment Prevention and Equity Programs in
              the Office for Equal Opportunity.
           b. Second, some facilities may be designated “for curricular use only” –
              meaning personal computing is banned. This is a constitutionally
              acceptable limit because it relates to the university’s mission without
              getting into content restrictions. If this option is chosen, the restriction
              should be clearly posted6, and it should be enforced against all types of
              personal computing, not just the viewing of pornography or sexually
              explicit material. It does not require close policing of users, but it would
              require response to complaints. (E.g., if someone had homework to do,
              they could complain about another user tying up a machine with game-
              playing.) If this option is chosen, it would be best to inform users of other
              facilities where general (i.e., personal) computing is allowed.




5
  A sign in the computer lab could state: “Concerns or complaints related to unlawful
harassment may be reported to the Office for Equal Opportunity, 1 Holladay Hall,
Phone: 513-1234 or report_harassment@ncsu.edu."
6
  Users could be notified by a sign clearly posted in the computing lab that says
something like: “This computing lab may be used for NC State work-related or academic
computing only. For general computing needs, you may use the facilities at
__________________ [indicate nearest computing labs that allow personal use].”

								
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