WP-ORG and the First Amendment

WP-ORG runs a significant number of email discussion lists. A key to effective management of these lists are certain guidelines for use imposed by the list moderator(s), Rules of Engagement if you will.

Almost inevitably, when someone loses list posting privileges because they violated a list’s Rules of Engagement, the issue of that individual’s rights to free speech under the First Amendment of The Constitution is raised. In fact, insofar as WP-ORG is concerned and as delineated below, these rights are not an issue.

~ Dempsey

First Amendment Free Speech rights and WP-ORG

The First Amendment to the United States Constitution states,  “Congress shall make no law … abridging the freedom of speech.” The Due Process Clause of the Fourteenth Amendment extends the prohibition on such laws to the states and subordinate government agencies. See Gitlow v. New York, holding the Fourteenth Amendment applies myriad constitutional restrictions, including free speech protection under the First Amendment, to state and local governments.

This prohibition applies to governments, including governmental institutions, such as public schools, colleges, and universities. The restriction does not apply to private entities, however.  See, e.g, Cyber Promotions, Inc., v. AOL, 948 F. Supp. 436 (E.D. Pa. 1996).  “The United States Supreme Court has recognized that ‘the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state.‘ Hudgens v.NLRB, 424 U.S. 507, 513 (1976).  Only recently, the Supreme Court has stated that ‘the guarantees of free speech … guard only against encroachment by the government and ‘erec[t] no shield against merely private conduct.’ Hurley v. Irish-American Gay Group of Boston, 115 S.Ct. 2338, 2344 (1995).

These cases make clear that the First Amendment restriction on free speech does not apply to WP-ORG, a private, 501(c)(3) non-profit organization. WP-ORG does not exercise powers “traditionally the exclusive prerogative of the state, Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982); has not acted with the help of or in concert with state officials, Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995); nor does it hold that “the State has so far insinuated itself into a position of interdependence with … [WP-ORG] that it must be recognized as a joint participant in the challenged activity.

WP-ORG does not open its forums to the public at large and is not itself a public forum.  WP-ORG’s servers are privately owned and are only available to the members of WP-ORG.  WP-ORG has never presented its e-mail servers to the public at large for dissemination of messages in general as its servers have a finite capacity.  WP-ORG’s e-mail system simply provides a means for its members to communicate with other members and not any members of the public who are connected with the Internet (Cyber Promotions, Inc., v. AOL).

Accordingly, WP-ORG may, at its discretion, limit the speech of any member of the organization without regard to the First Amendment.  The various forum moderators are granted the power to discipline members, to include the removal of messages and members from their forum(s), for violation of their forum(s)’s terms of service, to which all members must agree before using WP-ORG services, including joining and posting to an email forum.

10 responses

27 11 2007
Jay Gourley

I appreciate the sentiment behind Dempsey Darrow’s call for civility, but I did not take offense at Dian Welle’s posting (12:16:01). She added important information, and her mild criticism of me was justified.

Dian was correct that my post (6:46:20) was not a complete explanation of the information sharing contract between West Point and WP-ORG. Please blame me for any confusion on that point.

I also stand corrected on the sequence of events. I wrote that the contract with West Point preceded and brought about the parent forums. I am sure Dian must be correct that the forums existed and were silencing dissent before the suppression became part of the contract with West Point.

27 11 2007
Dempsey Darrow

Thank you, everyone, for your comments and continued input. Ultimately, I would prefer that the comment area not become a contentious debate venue, we have WP-ORG discussion lists with that mission :-).

~ Dempsey

27 11 2007
Dian Welle

Mr. Gourley,

Incomplete information does not aid in understanding, so I would like to clarify things ever so slightly regarding your post.

First, the parent lists existed LONG before the meeting in 1998 with Dick Breakiron, many of the office heads at USMA, and myself (a plebe parent at the time, who felt very outranked at that meeting ). It did not aid in the creation of the lists as you state. It simply aided in the flow of information, as the stated reason for the meeting was to open channels of communication at the time between USMA and the moderators of the parent lists. The meeting itself assisted in making the parent lists what they are today – a valuable learning and planning tool for the parents of cadets. It greatly assisted in forming them as they exist today, but that one rule, established when the lists were formed in 1995 (three years before the referenced meeting) has held fast.

There was very little information that came out of USMA in a timely manner in the ’90’s (USMA’s website was updated infrequently – far different from today). Parents, needing info to plan travel and other helpful pieces of information could use timely information to benefit their cadets and formulate family plans. Many at USMA were concerned about the purpose of the WP-ORG parent lists, and the meeting was set up by LTC Breakiron (Ret) with the support of the Supe, Gen. Christman.

I was at the meetings with Dick Breakiron, and if anyone wishes more detailed first hand information, I am happy to provide it in private (diwelle@west-point.org). I believe I can cover the meat of it here.

Among many things we discussed, one (probably the most important) was that the parent lists would not permit USMA “bashing”. This was already in effect at the time, since the parent lists were being run in the spirit of West Point. The lists were, and are, intended to be informational to assist understanding and to aid parents with event planning and learning about West Point itself. They are not and never have been intended to discuss the right or wrong of the Military, the Army or USMA. Dick assured those at the meetings that rumor, gossip, and criticism would never be permitted on parent lists, as that is not what the lists were intended for. Again, such things were never permitted before the meeting, and such things have not been permitted since. It was an agreement that assisted some of the offices at USMA to understand the purpose of the parent lists. As a result, more information regarding dates and times were more easily obtained by the moderators of the lists, assisting the parents, as intended.

Since that meeting, USMA has provided a great deal of information through their website, thus greatly reducing the need for the parent moderators to obtain information from the source as it were. Today, the moderators can simply point parents to the USMA provided information and help explain it. However, the agreement to not permit criticism of the military, the Army, or USMA, as you mention, are still held on our end, as it should be (and as it always was).

As Dempsey states “…WP-ORG may, at its discretion, limit the speech of any member of the organization without regard to the First Amendment.” The parent lists do not provide a forum for criticism or discussion of the right or wrong of regulations and decisions at USMA, the Army, or the Military at large.

Go Army!

Dian Welle
past Parent-Forum Moderator / Advisor to the parent lists

27 11 2007
Jay Gourley

When Dempsey Darrow says, “WP-ORG . . . has not ‘acted with the help of or in concert with state officials’, . . .” he neglected to mention that forum moderators often say they do act with the help of West Point officials and in concert with them.

More importantly, Darrow did not address the agreement between West Point and WP-ORG that created parent forums. Former WP-ORG CEO Dick Breakiron and the commandant at the time agreed WP-ORG would create the forums and suppress the kind of speech West Point could not suppress directly.

Neither that agreement nor its suppressive purpose is secret. Both are still in effect. When a forum member is silenced (sometimes permanently), the agreement has been cited as the reason. Posted forum rules do not necessarily limit that suppression since they have to be interpreted loosely to satisfy the agreement.

If you didn’t already know those things, you probably wonder about my motive for adding them. I think free speech is a good thing up to a point, and if First Amendment issues are to be raised, I think all the circumstances should be considered. But I’m not in a fight with anyone over this issue. Nor do I wish to be. I like and admire Dempsey Darrow, and I think WP-ORG is a great organization and getting better.

26 11 2007
Dave Bockstanz

As someone who has been ‘suspended’ from the forum in the past, I appreciate that the First Amendment guarantees a right to speak – not to be heard. Neither WP-Org, nor anyone else, is under any obligation to provide a forum for anyone or anything.

Nothing keeps anyone from establishing their own forum, publishing their own pamphlet, or speaking in their town square. There are no restrictions on anyone’s ‘free speech’ here.

26 11 2007
Dempsey Darrow

Jake Cameron wrote:

I am totally, 100% AGAINST any site or Forum that has the power/authority to restrict Free Speech no matter what the Supreme Court has ruled in the past. The Supreme Court has been wrong in he past, as it is in this instance.

Therefore, I will never participate on WP-ORG

You’re already a member of WP-ORG’s West Point Parent’s Net, Jake. Thank you for maintaining your membership in good standing.

~ Dempsey

26 11 2007
Dempsey Darrow

Geoff Cheadle, ’44, wrote: Well-stated Dempsey!

The above is the research and work of Doug Dribben, Esq., USMA 1983, who correctly pointed out the need to publicly clarify this recurring issue.

~ Dempsey

26 11 2007
Jake Cameron

I am totally, 100% AGAINST any site or Forum that has the power/authority to restrict Free Speech no matter what the Supreme Court has ruled in the past. The Supreme Court has been wrong in he past, as it is in this instance.

Therefore, I will never participate on WP-ORG

Jake

26 11 2007
Geoff Cheadle '44

I consider that to be able to publish online comments in the WP-Forum is a privilege, certainly not a right!
No wonder our country is in such a moral/sociological turmoil, when everything we want to do is assumed to be a right.
Well-stated Dempsey!

26 11 2007
Charlie Revie '64

For the past several years, I moderated several lists on Yahoo Groups (MRGRG-NM, VVB-Forum, Chapter61DisabledRetirees) and when the issue of free speech comes up, I have simply told them that “this list is my private property and that the 1st Amendment does not apply.” end of discussion. You have provided a much better researched discussion of the issue (which I have taken the liberty to copy and will post as a message on the above three discussion groups). Thanks

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