Blacklisted

 

Academic and First Amendment Freedoms

First, The BAA has extraordinary freedom to say what it thinks is right. Sure there are defamation laws, trademark (confusion with the official alum association), as well as some tort and criminal laws that may be relevant, but the first presumption should be freedom of speech. More power to them to engage in that freedom of speech. This goes without saying.

 

Student Surveillance

But soliciting recordings of classes with cash payments raises three sets of issues.

First, legal. Various state statutes and common law torts are potentially relevant. From some quick research, here’s my back-of-the-envelope legal analysis. CA Pen § 632 does not apply because it focuses on confidential communications, which a classroom discussion is not likely to be. CA Education codes §§ 51512 and 78907, which prevent recording without instructor consent, apply only to elementary and secondary schools, or community colleges, respectively. But CA Education code § 66450 is on point and makes clear that one cannot prepare or distribute class recordings for commercial purposes (payment here makes it commercial). The penalty under § 66451 includes both injunctions and fines, but not against current enrolled students. Also, there are various UC policies and UCLA student conduct code (§ 102.23a) that prohibit such recording.  (Full text of statutes at the bottom of this page.)

Second, policy. A University must be about free, robust exchange of ideas and arguments on the merits. But paying students to make covert recordings encourages a surveillance environment for teachers and fellow students. Under surveillance, intellectual freedom and creativity languish.

Third, irony. For a while the BAA pulled off its web page soliciting recordings after realizing that they might be breaking the law. (Now it’s back on line with some caveats.) But the Internet rarely forgets, and it is easy to produce a cached copy of the original page, which may be useful evidence in any legal proceedings. The BAA has unexpectedly experienced what it means to be the object of ubiquitous recording and surveillance.

The Reckless Scope and Inconsistency

Most folks who read about this affair will think that where’s there’s smoke, there’s fire. Maybe the BAA is exaggerating, but those professors must be a bunch of crazy lefties. I want to convey, however, a sense of how broadly the BAA cast its net.

Often, folks complain that I’m too moderate, not too radical (look at my scholarship). Neither accusation bothers me much. But here’s a telling comparison. The person who’s running the BAA is, by news accounts, a former official of the Bruin Republicans student organization. That organization organized a debate between me and Dinesh D’Souza when proposition 209 was on the ballot. Here’s how that debate was characterized to a letter to the editor (***)by the President of the Bruin Republicans to the Daily Bruin (in 1996):

[O]ne week ago, the Bruin Republicans sponsored a debate which featured Dinesh D’Souza, a nationally recognized leader against racial preferences and set asides. He is the author of two books, “Illiberal Education” and “The End of Racism.”

His debate partner was UCLA Law professor Jerry Kang. Kang skillfully argued against Proposition 209 without resorting to hollow political double talk. The debate was balanced, and informative, AND it attracted an audience which filled Dickson 2160E to standing room only.On the one hand, back in 1996, I was praised for being substantive, on the merits, without “hollow political double talk.” On the other hand, in 2006, I am put on a blacklist, characterized as beyond reason principally because of my work on affirmative action. Both statements come from individuals who ran the Bruin Republicans.

Bottom line is that we want substantive engagement on the merits, with an open mind, in the University. Even with that, folks are being classified as lunatic radical.

 

Journalists and their Soundbites

A final point about journalists. In covering a story that sensationalizes the radicalness of professors, one should be careful not to try to do precisely that in the story (if one cares about the truth and the merits). I gave an interview to Malcolm Maclachlan of the Capitol Weekly after he contacted me. [Update: As of Wednesday afternoon, Jan 18, my quotations were simply removed from the article after my complaint. Since there was no correction or formal retraction, my response will stay online since some will have read the original version.] He quotes me as likening this to the Nuremberg Files. I am a communications law scholar, and by any assessment, such a comparison would be a radical stretch. He informed me that in various profiles, personal information about family members including children were noted. I replied that if that were true, and if the site provided home addresses and there were solicitations to commit torts or break the law, that would recall the facts of the Nuremberg case. These qualifications never made it into the story, and only an inflammatory, indeed “radical,” comparison is provided.

Further, a quotation is made up about my creating some “side project” to “find[] out everything [I] can about Andrew Jones and the Bruin Alumni Association.” I’m sure I didn’t use the name since I didn’t recall it at the time. Further, I don’t have nearly that much time on my hands. Maclachlan specifically asked me whether I had a copy of the page that asked for recordings since the link had been pulled down. Knowing something about the Internet, I knew to check Google cache, which had a copy, which I downloaded and forwarded. I noted the irony regarding surveillance. But that’s hardly a “mission” to dig up dirt on the BAA. Again, arguably this is a tempest in a teapot–although the story now has legs.

 

Full text of most relevant statutes

Education Code 66450.

(a) Except as authorized by policies developed in accordance with subdivision (a) of Section 66452, no business, agency, or person, including, but not necessarily limited to, an enrolled student, shall prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of an academic presentation in a classroom or equivalent site of instruction by an instructor of record. This prohibition applies to a recording made in any medium, including, but not necessarily limited to, handwritten or typewritten class notes. (b) Nothing in this section shall be construed to interfere with the rights of disabled students under law. (c) As used in this section: (1) “Academic presentation” means any lecture, speech, performance, exhibit, or other form of academic or aesthetic presentation, made by an instructor of record as part of an authorized course of instruction that is not fixed in a tangible medium of expression. (2) “Commercial purpose” means any purpose that has financial or economic gain as an objective. (3) “Instructor of record” means any teacher or staff member employed to teach courses and authorize credit for the successful completion of courses.

Education Code 66451.

(a) Any court of competent jurisdiction may grant relief that it finds necessary to enforce this chapter, including the issuance of an injunction. Any person injured by a violation of this chapter, in addition to actual damages, may recover court costs, attorney’s fees, and a civil penalty from any person who is not a student enrolled in the institution at which the instructor of record makes his or her academic presentation and who seeks to obtain financial or economic gain through the unauthorized dissemination of the academic presentation. The amount of the civil penalty shall not exceed one thousand dollars ($1,000) for the first offense, five thousand dollars ($5,000) for the second offense, and for any subsequent offense, a penalty of not less than ten thousand dollars ($10,000) or more than twenty-five thousand dollars ($25,000). (b) Actions for any relief pursuant to this chapter may be prosecuted in a court of competent jurisdiction by the Attorney General or any district attorney or by any county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or any city attorney of a city, or city and county, having a population in excess of 750,000, and, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor or, with the consent of the district attorney, by a city attorney in any city, or city and county, in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation, or association or by any person acting for the interests of itself, its members, or the general public. (c) It does not constitute a violation of this chapter for a business, agency, or person solely to provide access or connection to or from a facility, system, or network over which that business, agency, or person has no control, including related capabilities that are incidental to providing access or connection. This subdivision does not apply to a business or agency that is owned by, or to a business, agency, or person that is controlled by, or a conspirator with, a business, agency, or person actively involved in the creation, editing, or knowing distribution of a contemporaneous recording that violates this chapter.