In the Fight Over Piracy, a Rare Stand for Privacy

The University of Oregon takes a stand for student privacy rights. Way to go!

The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs from Journey, the Cars, Dire Straits, Sting and Madonna on a file-sharing network.

The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.

Represented by the state’s attorney general, Hardy Myers, the university filed a blistering motion to quash the subpoena, accusing the industry of misleading the judge, violating student privacy laws and engaging in questionable investigative practices. Cary Sherman, the president of the Recording Industry Association of America, said the industry had seen “a lot of crazy stuff” filed in response to its lawsuits and subpoenas. “But coming from the office of an attorney general of a state?” Mr. Sherman asked, incredulous. “We found it really surprising and disappointing.”

The article goes on to note that while stealing music is indeed wrong, so are the strongarm, and extra-legal, tactics of the RIAA that tries to intimidate and bully institutions like U of Oregon into releasing private information.

“Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,” Mr. Myers wrote last month. “However, that pursuit must be tempered by basic notions of privacy and due process.”

“The larger issue,” Mr. Myers said, “is whether plaintiffs’ investigative and litigation strategies are appropriate.”

In the Fight Over Piracy, a Rare Stand for Privacy - New York Times

Court Rejects AEPi Argument for Recognition

2nd Circuit Rejects All-Male Fraternity's Bid for Official Recognition
Mark Hamblett
New York Law Journal

The College of Staten Island can enforce its nondiscrimination policy by barring from campus facilities a fraternity that does not admit women but holds events at mixed-gender venues such as strip clubs.

The 2nd U.S. Circuit Court of Appeals reversed a lower court for applying the wrong standard and said the fraternity's "interests in intimate association are relatively weak" while the City University of New York college's policy "serves several important state interests."

The panel in Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 06-4111-cv., vacated an injunction blocking the college from enforcing the policy in June. Thursday, 2nd Circuit Judges Pierre Leval and Guido Calabresi, and Judge John Gibson of the 8th U.S. Circuit Court of Appeals, sitting by designation, explained their reasoning in a 23-page opinion.

Chi Iota is a 19-member Jewish fraternity that sued the City University of New York, the college and several officials for not granting it official recognition.

Recognition gives student organizations, among other advantages, access to college facilities, use of campus bulletin boards and the chance to apply for special funding through the college's student government.

Chi Iota, whose membership consists mostly of nonpracticing Jews but also has several current members who are not Jewish, is devoted to "the inculcation of the traditional values of men's college social fraternities ... community service, and the expression of Jewish culture."

Its president in court papers defended the "selective, single-sex, all-male nature of the Fraternity" as essential to "achieving and maintaining the congeniality, cohesion and stability that enable it to function as a surrogate family and to meet [the] social, emotional and cultural needs of its members."

The fraternity also has activities that include nonmembers, including women, and a "rush" week every February in which it has planned events that include laser tag, a visit to a strip club and a karaoke party.

Eastern District of New York Judge Dora Irizarry granted the fraternity's motion for a preliminary injunction, finding it was substantially likely that Chi Iota qualified as a "intimate association" and forcing it to admit women would burden its associational rights.

Assuming such a burden, Irizarry concluded, the college's intrusion should be subject to the exacting "strict scrutiny" First Amendment standard of review.
That was the wrong standard, Leval said for the circuit.

LIMITED INTERFERENCE
As expressed by the U.S. Supreme Court in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), courts considering whether a government rule infringes on the freedom of association engage in a balancing test, considering "the strength of the associational interest," the "degree to which the rule interferes with those interests," the "public interests or policies served by the rule" and "the tailoring of the rule to effectuate those interests or policies."

"Rather than balancing (the college's) interests in its nondiscrimination policy against the Fraternity's interests in opposing the policy, the district court adopted a categorical approach: Either the policy affected a constitutionally protected liberty or it did not," Leval said. He added later, "In other words, the district court made no distinction between association claims that are strongly protected by the First Amendment and those that are weakly protected; as long as some First Amendment interest was implicated in the policy, the policy would be subjected to the rigors of strict scrutiny."

Instead, Leval said, "Associational claims populate all ground from the heart of the First Amendment to its periphery, resisting facile attempts to divide them neatly into two piles."

Chi Iota is small but hopes to grow to 50 pledges per semester, so its "size limitation is a product of circumstances, not a desire to maintain intimacy," he said, and "the degree of selectivity" the fraternity employs in choosing new members "compares unfavorably with that employed in creating the strongest of associational interests, as in the cases of marriage or adoption."

The purpose of the group is "generally inclusive" and tries to promote "broad, public-minded goals that do not depend for their promotion on close-knit bonds," he said, and while the fraternity also seeks to "foster personal, intimate relationships," the "same can be said of nearly any student group in which members become close friends."

And while some of the groups activities take place only among members, "it also involves nonmembers in several crucial aspects of its existence," he said.

It was important to the court that the college's nondiscrimination policy only interfered with the associational rights of Chi Iota in a "limited" way.

For example, "The fraternity has not shown that the unavailability of school facilities makes it impossible, or even difficult, to find suitable places for meetings."

The college's interests in enforcing the policy was substantial, the court concluded, and the means it chose to pursue its goals were "well tailored to effectuate those interests."

The court then vacated the preliminary injunction and remanded the case for further proceedings.

Gregory Hauser of Wuersch & Gering represented the fraternity. While disappointed in the result, Hauser said Thursday that the "good news" was that the court affirmed the fraternity is an intimate association. It did not, however, grant the fraternity the level of constitutional protection his clients sought, he said.

Hauser added that he expected the fraternity "will still pursue its claim for protection of its right to expressive association" on remand "as well as consider other options such as applying for certiorari from the U.S. Supreme Court."

Attorney General Andrew Cuomo issued a statement saying, "We are pleased that the court has recognized the school's right to deny funds and official recognition to a student organization which discriminates against women. This opinion rightly enables the College of Staten Island to pursue their commitment to creating a community devoid of prejudice."

Solicitor General Barbara Underwood, Assistant Solicitor General Gregory Silbert and Deputy Solicitor General Michelle Aronowitz represented the state.

2nd Circuit Rejects All-Male Fraternity's Bid for Official Recognition

Sigma Chi at Chapel Hill Wins Appeal

Jablonski reduces Sigma Chi penalty
Fraternity now on probation
Daily Tar Heel
University of North Carolina, Chapel Hill
January 22, 2007
Andrew Dunn, Assistant University Editor

Sigma Chi fraternity, which was found guilty in November on seven hazing charges, will not be suspended after a reduction of previous sanctions on appeal.

The fraternity now will be under University probation until Dec. 31 after the decision of Vice Chancellor for Student Affairs Margaret Jablonski altered that of the Greek Judicial Board.Under probation, the fraternity will be unable to hold social events with other organizations but will be able to hold rush and initiate new members.

Sigma Chi had been suspended until 2009 after a decision by the judicial board.Terms of suspension included not being allowed to hold rush or host social events such as cocktails or mixers."I wanted the sanctions to be proportional to the allegations," Jablonski said. "And to be in concert with what the authority of the Greek Judicial Board is.

"Jablonski said she heard the appeal because the board could not suspend a chapter, only make that recommendation to the Dean of Students office.

Other features of the new sanctions stipulate that Sigma Chi cannot field intramural sports teams, that each member must complete 20 hours of community service, that the new member program must be revised and that fraternity officials must meet regularly with members of the Dean of Students office.

The national Sigma Chi organization also will review the UNC chapter's procedures.

The fraternity must present documentation that it is following through on its sanctions.Sigma Chi officials released a written statement in lieu of comment."

As a chapter, we are glad that the appeals process has concluded, and we are now able to initiate our new members," it reads in part. "We wish to thank the Office of Student Affairs for their professionalism throughout the appeals process."

All new members from fall 2006 have maintained an interest in being initiated, fraternity officials said. Sigma Chi's next rush period will be fall 2007.Charges against Sigma Chi included forced consumption of alcohol and other substances, verbal harassment, sleep deprivation and calisthenics.The fraternity appealed the severity of the sanctions. An appellate hearing by the judicial board returned the same decision.

Ashley Frazier, chairwoman of the board at the time, said that she has decided not to comment on Jablonski's decision, but that the judicial board and the University have worked together well.

The ruling was the first appeal from a Greek board for Jablonski, who came to the University in 2004. She also hears appeals from the Honor Court and other student groups, but she said appeals reach her office very infrequently."I think that's a reflection that the system is working."