DOJ And Dept. Of Education To Colleges: Start Restricting Free Speech On Campus Or Kiss Your Federal Funding Goodbye

from the apparently,-speech-is-best-served-chilled dept

Our nation's universities are (or were) usually considered to be places that fostered open discourse and encouraged the discussion of controversial topics in order to promote the growth of both the students and their critical thinking skills. This is no longer the case. Many universities have crafted guidelines and policies that inhibit free speech, usually as an overreaction to offended sensibilities or criminal activity.

Much of what we've covered recently has dealt with private colleges, which have a little more leeway in crafting their speech policies. The chilling of free speech on campus is now spreading to public universities (not that some didn't have this problem already). Worse still, it's a government mandated inhibition of free speech, tied directly to federal funding.

In a letter sent yesterday to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

What the OCR (the Dept. of Education's Office for Civil Rights) has done is remove the "objective" standard and opened anything said or done to be judged as harassment from a strictly subjective viewpoint. This is coupled with some very broad definitions of the sort of behavior prohibited under these new national codes. Eugene Volokh's in-depth writeup lists some of the prohibited actions.

saying “unwelcome” “sexual or dirty jokes”
spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)”
engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, pictures or written materials”
making “unwelcome” sexual invitations.

There is no longer any stipulation that the offending actions create a "hostile, offensive or abusive environment." And, again, the "objective and reasonable" yardstick has been removed and replaced with subjectivity.

As FIRE (Foundation for Individual Rights in Education) points out, this new OCR letter contradicts a "Dear Colleague" letter issued by the OCR in 2003, in which the office offered the clarification that any guidelines issued were not intended to inhibit free speech on campus.

I want to assure you in the clearest possible terms that OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution ...OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.

It appears the OCR is no longer interested in protecting First Amendment rights. As FIRE notes, the new OCR letter does not contain the phrases "free speech" or "First Amendment" anywhere within its 31 pages. It also contradicts the OCR's earlier guidance on harassment, where it stated that actionable (or prohibited) behavior "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive."

FIRE also points out that the new codes cover much more than "sexual" speech, being expanded to cover "gender-based harassment," including "harassment based on a person's nonconformity with gender stereotypes." All well and good to bring more people under this "protection," but it does mean that certain protected speech will now lose its protection, at least on campus. FIRE quotes a Third Circuit Court decision [DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)]:

[T]he policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality.

The OCR's letter does some dangerous conflation, in addition to its general disregard for students' First Amendment rights. By using the criminal sexual assault that occurred at the University of Montana as a springboard for its harassment policies, the OCR aims to kill two birds with stone, but only manages to injure one with its feckless toss -- free speech. The actions condemned (and meant to be prevented) by this letter remain punishable by existing laws and policies. Adding further limits to speech is simply a welcome byproduct for establishments (universities and the government) that seem to feel more and more that only subjectively acceptable speech should be protected. This new, mandated First-Amendment-as-university-doormat will only serve to make students more closed-minded as they toe these aribitrary lines and make our institutions of higher learning pale parodies of their formerly progressive selves.

Filed Under: college campuses, federal funding, free speech

Next Tech Area To Be Hindered By Patents: Nanotech... And Much Of It Is Funded With Your Tax Dollars

from the step-on-up dept

As with any "hot" technology area, it doesn't take long for a massive, innovation hindering patent thicket to spring up. It effectively makes it impossible to bring anything to market unless you've got a huge patent portfolio yourself and deep pockets. Yet another example of patents harming the smaller players in the market. A new report is suggesting that the latest "hot" area to get patent crazy is nanotechnology.

However, the really worrying thing about the report is that it notes that the single largest "patent patron" in nanotechnology... is the federal government. Yes, the government is spending your tax dollars to have these new inventions locked up so you can't use them. We've discussed this before, and no one has yet been able to credibly explain why federally funded research should get a patent. Years back, it was determined that federal documents could not be covered by copyright for this reason, but why doesn't that extend to patents? It's especially disturbing because it's clear what's going to happen. Our tax dollars pay for the research, and then it's transferred over to a private company who uses the monopoly rights to keep it expensive and limit further innovation.

Filed Under: federal funding, nanotech, patents

Federal Agencies May Lose Funding For R&D Projects Because The NSF Didn't Fire An Employee Who Saw Porn

from the there-goes-the-sec dept

Washington DC can be a funny place when it comes to negotiating legislation. Apparently, an effort to renew a program that provides billions in funding for important long term research efforts (you know, the kind of programs the government should be funding) may get held up over some amendments added to the bill... including one that would ban federal money going to any gov't employees disciplined for viewing porn on their computers. Effectively, the amendment means if you view porn on your computer as a gov't employee, you are fired. Actually, you don't even have to view the porn. The language says no federal funding can go:

"to salaries to those officially disciplined for violations regarding the viewing, downloading, or exchanging of pornography..."

Want to get a federal employee fired? Send them an email with a pornographic picture as an attachment. What does this particular amendment have to do with federal funding for research? Apparently, the guy who wrote the amendment says he's upset about giving money to the NSF, because it merely "disciplined" and suspended rather than fired an employee found with porn on his computer. Of course, give the recent revelations about porn web surfing at the SEC, if this goes through, say goodbye to the SEC.

Because no one wants to be seen as supporting government employees viewing porn, this particular amendment passed easily. We're coming up on election season, and you can bet no Congressional reps wanted to hand their opponents this line in a commercial: "While in Congress, Rep. X voted in favor of letting federal employees view porn on their computers..." or something along those lines.

Of course, that same amendment also pulls funding for a number of programs and may cause the entire bill to be withdrawn, leaving the status of funding for a lot of research in limbo. Now, I'm all for making sure that the funding is used in a reasonable manner, and if certain programs are ineffective, it's worth looking to see if they should be removed from the bill. But, to lump in decisions on funding with a program about firing employees who view porn just seems like a crass political ploy during a debate on a particularly important issue. It may be par for the course in Congress, but to those of us who actually care about innovation, it's stories like this that make us so cynical about the US government.

Filed Under: federal funding, nsf, porn, r&d

If Gary Locke Wants To Incentivize Commercializing Research He Should Look To Get Bayh-Dole Repealed

from the fix-the-problem dept

Commerce Secretary Gary Locke is apparently greatly concerned about getting more federally funded research out of university research labs and into the market:

"the United States cannot afford to merely fund research and say a prayer that some entrepreneur will commercialize it down the road,"

So he's asking for advice on how to improve the commercialization of federally funded research. Here's a simple and practical idea that he almost certainly won't consider:

Get the Bayh-Dole Act repealed.

Bayh-Dole, of course, was officially designed to do exactly what Locke is supposedly now looking to do. It specifically gave universities and other organizations the right to patent and control federally funded research, with the misguided belief that this would increase commercialization of federally funded research. The law was enacted thirty years ago, and we can now say, pretty conclusively, that it has failed and has only served to hold back commercialization efforts and to massively stifle federally funded research in a number of areas, through a series of (somewhat predictable, if you understand what monopoly rights do) unintended consequences.

Research studying the impact of Bayh-Dole found that it did not increase university research commercialization. Instead three things happened, all of which were bad:

1. First, tons of universities set up tech transfer offices because of Bayh-Dole. Thinking that the law would suddenly create a new revenue stream in licensing patents, universities spent heavily on setting up such offices to facilitate the transfer of patents to commercial entities. Unfortunately, patents, by themselves, are rarely that valuable, and most universities greatly overestimated the value of their patents. This hurt in multiple ways. Fewer patents than expected were licensable -- and even when a potentially licensable patent came up, the tech transfer office often valued it way too high, such that companies refused to license it, or if they did, were saddled with such debt that they couldn't build a real business. On the whole tech transfer offices have been a huge money loser for the majority of universities.
2. Second, Bayh-Dole actively stifled important research. Academic research has always been about active sharing of information, with different individuals testing, retesting, and modifying various hypotheses and tests. But with the focus on patenting, suddenly universities didn't want their professors sharing any more, greatly holding back the standard process by which research actually becomes useful.
3. Third, by focusing on patenting and creating an exclusive right around federally funded research, it limited what fields that research could be applied to for commercialization. That's because often, the licensing would be on an exclusive basis to a single company in a specific field -- blocking out all other potential commercialization routes.

If Locke is serious about improving commercialization of federally funded research, it's time to work with Congress to dump Bayh-Dole. Federally funded research is research paid for with American taxpayer money. To lock it up such that only a single organization can make use of it is a travesty, and is doing tremendous harm to both actual research and commercialization efforts. Instead, it's time to recognize that the drive to innovate comes from market needs and competition, not from gov't granted monopolies.

We've had nearly thirty years to witness that Bayh-Dole failed in its stated purpose. It's time to get rid of it.

Filed Under: bayh-dole, commercialization, federal funding, gary locke, research

Obama Administration Considers More Public Access To Publicly Funded Research

from the this-is-a-good-thing,-people dept

It's hard to comprehend who could be against the idea that federally-funded research (i.e., research funded by your tax dollars) shouldn't become available to the very public who paid for it. But many publishers pushed back hard when the National Institute of Health (NIH) began enforcing a rule that required the research it funded to be published openly a year after it was published in a journal. Again, this was really incredible. Journals get all of their content for free. They do not pay the authors. The journals often claim the copyright over those works as well -- despite the lack of payment. The journals also do not pay the peer reviewers either. The biggest expenses of most publications... not even present in such academic journals. And yet they still charge huge fees for the publication itself. It's a great scam, and they don't want it to end. But even the NIH rules still give them a year's monopoly. Yet, they hated it so much that they even got Rep. John Conyers to try to pass a law ending the requirement -- which thankfully went nowhere after lots of people protested.

The good news is that it looks like the Obama administration is looking to go in the other direction. The EFF points us to the news that the Office of Science and Technology Policy (OSTP) is looking at ways to have this requirement go beyond just NIH and require public access for all federally funded research, including from organizations like the National Science Foundation (NSF). OSTP is asking for comments and input on the idea -- and it's an idea that makes a ton of sense. It seems likely that journal publishers will protest, but hopefully common sense will prevail and federally funded research will become open, accessible and available to everyone.

Filed Under: federal funding, open access, public access, publicly funded research

Nobel Prize Winning Scientists Say Federally Funded Research Should Be Available Free Online

from the good-for-them dept

For many years, there's been a lot of debate over the fact that many scientific journals effectively lock up the results of federally funded research in expensive journals that are inaccessible to the public -- including many other researchers. Locking up useful research is troubling enough, but when it's federally funded, it's really problematic. Many scientists are quite troubled by this, and Glyn Moody points out that a group of Nobel Prize-winning scientists has now urged Congress to require federally-funded research to be freely available online. Really, they're pushing in favor of a new law, the The Federal Research Public Access Act of 2009, which seems to make a lot of sense. If the government is funding the research, the more widely available it is, the better.

Filed Under: federal funding, journals, open research, research, science

Washington Post Calls For Federal Funding Of Newspapers?

from the gee,-biased-much? dept

Just days after we wrote about a study that showed more government funding of the press leads to less reporting on government corruption, along comes the Washington Post with an editorial saying it's time to have the federal government fund more journalism. I wonder how Watergate would have turned out if the Washington Post was relying on Nixon for cash... The editorial piece claims that no one is "filling the gap" left by fewer newspaper reporters, but presents no evidence whatsoever to support that. The market is changing, absolutely, but we're seeing all sorts of new, unique and innovative ways of covering the news -- often allowing much greater coverage than in the past. Getting the government involved may sound good to the Washington Post, but it hardly seems like the right formula for an independent press.

Filed Under: federal funding, journalism, newspapers