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 
  1. 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.
  1. 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:
    1. Child pornography (criminal offense to possess or distribute – this includes accessing it by computer)[1]
    2. Obscenity (criminal offense to distribute)[2]
    3. Sexual harassment[3] (civil liability under non-discrimination laws)[4]
  1. 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.
  1. The university has a legal duty to prevent sexual harassment.  The university also has a legal duty to uphold free speech rights.
  1. People who administer public or shared computing facilities can take either of two approaches. 
    1. First, do not prohibit users from viewing sexually explicit material or pornography.  You may, however, post information on how to lodge harassment complaints[5], 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.
    2. 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 posted[6], 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.

[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 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]  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].”