No First Amendment Violation When University Puts Web Sites on List of “Unreliable Websites” That Students Should Generally Avoid

Strikes me as exactly right. Interestingly, Bruce Fein, an oft-noted legal commentator, was lawyer for the plaintiffs. The case is Turkish Coalition of America v. Bruininks (D. Minn. Mar. 31):

Plaintiffs Turkish Coalition of America (“TCA”) and Sinan Cingilli brought this action against The University of Minnesota and two University officials, [University President] Robert Bruininks and Professor Bruno Chaouat [Director of the Center for Holocaust and Genocide Studies (“CHGS”) at the University], asserting that Defendants violated their constitutional rights to free speech, equal protection, and due process. Plaintiffs also assert state-law claims for defamation. The matter is before the Court on Defendants’ motion to dismiss Plaintiffs’ Complaint. For the reasons set forth below, the Court grants Defendants’ motion….

TCA is a not-for-profit corporation whose objective is, among other things, to educate the general public about Turkey and Turkish Americans; to foster friendship, understanding and cooperation between the United States and Turkey; to protect the character and ensure a realistic portrayal of Turkey and Turkish Americans in the media and the arts; and to serve as a “think tank of expertise and a clearinghouse of information on Turkey and Americans of Turkish descent.” TCA operates a website through which TCA maintains that the issue of whether the deaths of Ottoman Armenians during World War I constitute a crime of genocide under the Genocide Convention of 1948 and implementing domestic law in the United States is a genuine historical and legal controversy. TCA’s website further “argues that the facts and the law make it unlikely that a genocide charge could be sustained against the Ottoman government or its successor before a neutral arbiter.” This viewpoint is referred to as the “contra-genocide viewpoint.” …

The CHGS considers the killing of Ottoman Armenians during World War I a case of genocide. From sometime in 2006 through November 18, 2010, the “Curriculum Models” section of the CHGS website included a statement under the heading “Unreliable Websites”:

We do not recommend these sites. Warnings should be given to students writing papers that they should not use these sites because of denial, support by an unknown organization, or contents that are a strange mix of fact and opinion. We also do not advise using sites with excessive advertising.

TCA’s website was listed as unreliable. Other listed websites included, without limitation, Armenian Issue Blog, Assembly of Turkish American Associations, and Armenian Genocide Debate. Wikipedia was listed “for anything related to the Holocaust & Genocide, because of the nature of the subject matter & contested history, [sic] can be unreliable.” Some listed websites are noted to be “revisionist” or run by “denier organizations.” Others are noted as being “overly immersed in advertising,” believed to “cause[] computer malfunctions,” and “interesting but only backed & run by students” with “no indication of academic supervision.” …

The crux of Plaintiffs’ constitutional claims rests on the allegations that Defendants engaged in viewpoint discrimination by “blacklisting” Plaintiffs’ website as unreliable, failed to afford TCA notice or the opportunity to be heard prior to deeming TCA’s website unreliable, and violated Plaintiffs’ right to equal protection by discriminating against their contra-genocide viewpoint. Defendants argue that their contested statements are protected by academic freedom, and for this reason alone, Plaintiffs’ claims should be dismissed….

Defendants assert that the statements regarding the unreliable websites list constitute expressions of the CHGS’s and Professor Chaouat’s views regarding the validity of the information set forth on the listed websites, including TCA’s, and whether the information should be used in scholarly research. Defendants further assert that they have the right to comment on and critique the views publicly expressed by others, including TCA’s contra-genocide viewpoint.

Plaintiffs recognize that bona fide educational judgments should be made by educators and assert that they do not seek to sanction professors for publishing their scholarly opinions of the reliability or value of sources of information. However, Plaintiffs maintain that Defendants made a counter-educational decision by designating TCA’s website as unreliable. In doing so, Plaintiffs contend that Defendants delegitimized the contra-genocide viewpoint and engaged in viewpoint discrimination, violated Plaintiffs’ free speech rights, violated TCA’s right to due process, and discriminated against Plaintiffs’ contra-genocide viewpoint. Plaintiffs take particular issue with the portion of the Unreliable Websites Statement that explains that students writing papers should not use the listed “unreliable websites” “because of denial, support by an unknown organization, or contents that are a strange mix of fact and opinion.” Plaintiffs contend that this language is subjective and vague and stigmatizes TCA’s website. In addition, Plaintiffs assert that Defendants failed to give Mr. Cingilli assurances that he would not suffer academically if he used TCA’s website.

The Court concludes that this case is properly viewed in the context of academic freedom and that Defendants’ statements are protected by that freedom. The CHGS is free to indicate to students that it thinks certain websites are not proper sources for scholarly research. The ability of the University and its faculty to determine the reliability of sources available to students to use in their research falls squarely within the University’s freedom to determine how particular coursework shall be taught. The CHGS also acknowledges their viewpoint that the killing of Ottoman Armenians during World War I was genocide. This viewpoint, as well, is within the purview of the University’s academic freedom to comment on and critique academic views held and expressed by others. Because the Court concludes that Defendants’ statements are protected by academic freedom, Plaintiffs cannot maintain their claims against Defendants….

[Footnote:] With respect to Plaintiffs’ alleged First Amendment violations, Plaintiffs’ allegations do not demonstrate that Defendants ever blocked access to TCA’s website or prevented students from accessing the contra-genocide viewpoint. Nor do Plaintiffs’ allegations demonstrate that Defendants restricted Plaintiffs’ ability to publicly express their views or otherwise engage in free speech activities. In addition, Plaintiffs’ Complaint fails to identify any constitutionally protected right to which they were deprived to support a due process claim or any basis to support their equal protection claims. [Rest of the paragraphed moved from earlier in the opinion. -EV] In their Complaint, Plaintiffs do not allege that Mr. Cingilli, or any other student, was blocked or banned from accessing the TCA website. Nor do Plaintiffs allege facts showing that Mr. Cingilli, or any other student, was ever prohibited from expressing his own opinion regarding the treatment of Armenians during World War I, or that TCA was ever prevented from making its own views (including its contra-genocide viewpoint) known publicly via its website.

[As to the defamation claim,] the Court concludes that the alleged statements constitute protected opinions of the CHGS and Professor Chaouat. Defendants have openly acknowledged that the CHGS and Professor Chaouat believe that the killing of Ottoman Armenians during World War I was genocide. Even if the allegedly defamatory statements indicate that the TCA’s contra-genocide viewpoint is unreliable, it is clear that this position is one of academic opinion. Accordingly, the Court dismisses Plaintiffs’ defamation claims against Defendants.

The Court notes that in order for Plaintiffs’ defamation claims to go forward, Plaintiffs would have to be able to establish that the allegedly defamatory statements made on the CHGS website were false. To conclude that Defendants’ statements were false, the Court would also have to determine that either the contra-genocide viewpoint is correct or that the issue is a genuine controversy. The problematic nature of such a request highlights why statements of opinion, and particularly academic opinion, are not actionable….

For the opposing view, see TCA’s opposition to the motion to dismiss.