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Freedom of Expression Is Tested in 2 Cases at 'the Un-Berkeley'

September 28, 2003|Sally Ann Connell | Special to The Times

SAN LUIS OBISPO — The quiet campus of Cal Poly San Luis Obispo, known in some quarters as "the un-Berkeley," does not usually find itself at the epicenter of debate over free speech in academia.

And yet it is at the center of two. Cal Poly has been accused of being too liberal regarding access to online pornography for professors and students, and too restrictive in controlling a conservative student's speech.

University officials say it is "very unusual" to have these issues erupting at once because they say the campus has never been known as a center for the free-speech movement.

But Cal Poly spokesmen found themselves inundated last week with inquiries about campus downloads of pornography and about a young Republican who sued the school in federal court after being disciplined for posting a flier at a gathering of African American students.

For The Record
Los Angeles Times Monday September 29, 2003 Home Edition Main News Part A Page 2 3 inches; 127 words Type of Material: Correction
Pornography charges -- An article in Sunday's California section wrongly identified Safwat Moustafa as having pleaded no contest in 2002 to charges of downloading adult pornography on a Cal Poly San Luis Obispo computer. Moustafa is the former chairman of the mechanical engineering department at the university; he was arrested last week on federal charges of possessing child pornography on his Cal Poly computer before leaving the campus in 2001. He has been released on bond and will appear at an arraignment in federal court in Los Angeles on Oct. 13. Robert Heidersbach, former chairman of the separate materials engineering department at Cal Poly, is the person who pleaded no contest to state misdemeanor charges of downloading 13,000 images of adult pornography on his computer in 2002.

They are distinct cases, and yet free-speech academics are following them both.

"Offensive speech is just something you will be exposed to at a university," said Eugene Volokh, a UCLA law professor and expert on free speech who is teaching at Harvard University. He stressed that Cal Poly must be careful as it maneuvers these shoals. "Universities are inherently messy places and must provide maximum access to ideas, good or bad," Volokh said.

The issue of downloading pornography has reared its head at other universities, and has been dealt with in broadly different ways. Arizona and Virginia have adopted rules that prohibit downloads of pornography in most cases at state universities unless it is research-related.

In California, many universities have adopted "responsible use" or "allowable use" policies with disparate wording, but all prohibit illegal behavior such as downloading child pornography and obscenity. Most, by not addressing it specifically, allow downloading of legal porn.

Some, such as Cal Poly, prohibit using a computer in a way that might create a "hostile working environment." San Diego State University has adopted one of the most stringent policies in the state.

"There is a lack of uniformity because these issues are very volatile," said Stuart Biegel, a UCLA law professor with knowledge of education and cyberspace law. "Let's be frank. It's not as if downloading pornography is that rampant. But for many professors, it's the principle here that is just gigantic."

At Cal Poly, a debate over downloading pornography had died down after acrimonious discussion in the last school year.

But it was resurrected last week after the arrest of Safwat Moustafa, 63, former chairman of the mechanical engineering department, on federal charges of possessing child pornography on his campus-issued computer in 2001. He resigned his post in August 2001.

Moustafa is free on $200,000 bail, and has been ordered by a federal magistrate to forfeit his passports and avoid the Internet, according to federal prosecutor Rod Castro-Silva.

Transmitting child pornography and obscenity are illegal under federal and state laws, and under Cal Poly's own rules.

In the winter and spring, Cal Poly was swept up in debate over an effort by some professors to push a policy against using campus computers to transmit "sexually explicit, racially or ethnically degrading material." After a Cal Poly Academic Senate subcommittee voted down the policy in May, the local newspaper called the campus "Cal Porny" in an editorial.

That debate was ignited on campus after Moustafa pleaded no contest in local court last year to downloading 13,000 images of adult pornography on a campus computer.

After his arrest, Cal Poly released a statement stating that it "shares the public's abhorrence of child pornography." It also admitted failings in waiting four months to turn over evidence to university police.

Some see such cases as inherently related to unrestricted access to pornography.

"It's like alcohol," said Linda Vanasupa, the professor who began the campaign to restrict Cal Poly Internet use. "There is no point in providing alcohol for free and then being surprised that somebody develops a problem with it."

But academics in the field of Internet law and personal freedom say that although legal pornography and child pornography may be linked in people's minds, they are different.

"Pornography is not necessarily illegal. It is only illegal if it is child pornography or obscene," Biegel said. "If it's not obscene or child pornography, you can probably download all the pornography you want."

Biegel said researchers might need to download pornography for biology classes, women's studies classes, and for some types of research.

Volokh noted that although courts might uphold some kind of law limiting "sexually explicit" downloads, they have been consistent in upholding constitutional protections for what could be considered even the most offensive racial hate speech.

"Any prohibition on racially or ethnically degrading materials would be illegal," Volokh said.

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