Is It A First Amendment Violation For Public Universities To Tell Athletes They Can't Tweet?

from the government-restrictions-on-speech dept

Wed, Dec 1st 2010 11:57pm — Mike Masnick

Eric P. Robinson, from the Citizen Media Law Project has a fascinating post analyzing whether or not it's a First Amendment violation when public universities put in place policies forbidding athletes from Tweeting or using Facebook:

It turns out that a number of public and private universities -- including Boise State, Indiana University, New Mexico State, Texas Tech, the University of Miami (private), and the University of North Carolina -- have followed the lead of the National Football League, which imposes limits on players' use of social media. The NFL prohibits players from using social media during games (and has attempted to extend this to others at the game).

But the schools have gone further: Boise State banned players from using any social media during the season, while New Mexico State barred Twitter during the season. Meanwhile, the University of Miami, UNC, and Texas Tech all required football players to cancel their Twitter accounts entirely. And Indiana University indefinitely suspended a player from the football team after he sent Tweets criticizing the school's coaching staff.

As Robinson notes, private organizations can put in place whatever policies they want (within certain limits), but the question is a bit trickier with public institutions. Numerous rulings have granted free speech rights to students in public institutions -- with famous cases like Tinker v. Des Moines -- the classic "free speech in school" case. Robinson points out that the courts have held universities to an even higher standard. He runs through a series of (sometimes conflicting) case law, which finds that free speech is mostly protected, but restrictions are allowed for things like insubordination, but overall bans on social networking may be tougher to legally support:

The rule emerging from these cases seems to be that public schools can reprimand student athletes for insubordinately expressing dissatisfaction with their coaches, while they cannot punish athletes for serious -- and specific -- allegations. The Indiana University suspension, resulting from Tweets critical of the coaches, would probably be upheld under this rule.

But it would be difficult for the blanket rules imposed by the other schools on use of social media by football players -- a total ban on Twitter or on all social media, applying either during the season, or at all times -- to withstand First Amendment scrutiny. Schools may penalize students for specific Tweets or posts that are likely to lead "substantial disruption of or material interference" with the team and its activities, but cannot impose a prior restraint on athletes in mere anticipation of such a comment.

For failing to go through the First Amendment goalposts, the public colleges' policies limiting athletes' use of social networking sites should be sacked.

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Filed Under: first amendment, public universities, social networks

27 Comments

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misterdoug (profile), 2 Dec 2010 @ 12:56am

What about prior consent?
Excuse me - private institutions can do whatever they want? I don't see why. A university is one party in a two-party contract between itself and a student. A student enters into that contract expecting to pursue a 4-year education under conditions that are spelled out at the time of enrollment. If that student has been holding up his or her end of the deal in terms of paying tuition, maintaining minimum GPA, etc, I don't think it's a given that the university can decide to impose new conditions as radical as requiring the student to give up constitutional rights. It's reasonable to assume that many students would not have enrolled had such restrictions been in place at the time. It isn't as simple as saying students who don't like it can go somewhere else, because going somewhere else isn't that simple. Consider other rights ... if the university decided that all students who registered to vote would be expelled, I doubt that very many people would argue in its favor.
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Bengie, 2 Dec 2010 @ 1:23am

Re: What about prior consent?
Yes, they can do what ever they want, so long as it doesn't interfere with your private life.

Once you're off their land and not under their time, they can't tell you what you can and can't do with your personal life.

If they don't like something you're doing after hours, that's a civil matter and should be taken to court.

What's next, you can't eat meat? How about you're not allowed to talk to your mom. Or you're not allowed to have friends.

There's not much grey in here.
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Rose M. Welch (profile), 2 Dec 2010 @ 1:40am

Re: What about prior consent?
I'm reasonably sure he means that private institutions aren't held to the same Constitutional standards as government institutions. You can tell by the way that the entire post is about a Constitutional amendment that only applies to our government, and not private citizens, companies, or institutions.
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Griff (profile), 2 Dec 2010 @ 2:28am

It's not about the medium
If someone rang the local newspaper and dissed the coach, would they ban use of phones ?

If there is a specific act (e.g. criticising the coach) that they wish to ban, why not say "to be in the team you agree to not publically criticise the coach". This is part of the contract of being in the team (not attending the institution).

I'm sure people would not fail to apply to a university that said "if you are selected to be in our football team, you will be asked to sign a 'don't publically diss the coach' clause before being allowed to join the team.
The sanction should be limited to being thrown out of the team.
Of course, there should be some mechanism for disaffected players to privately raise constructive criticism as a first resort.

But if the up front clause was "don't ever publically criticise teaching at this institution", then I'd certainly not apply to any such university. I mean, what have they got to hide ?

But no Facebook ? They must be joking.
I mean, I'm 45 and barely use Facebook but at least I get how important it is to younger folk these days.
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Rose M. Welch (profile), 2 Dec 2010 @ 2:30am

Re: It's not about the medium
Younger folks? Man, I can't even login without being messaged by one grandma or another aunt. It's terrible/awesome.
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zaven (profile), 2 Dec 2010 @ 4:40am

Misguided Attack
Just wanted to point this out:
"Indiana University indefinitely suspended a player from the football team after he sent Tweets criticizing the school's coaching staff."

Suspending someone for publicly criticizing their coach has little to do with Twitter. It has everything to do with undermining their authority. This isn't anything new.
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Anonymous Coward, 2 Dec 2010 @ 5:40am

Re: Misguided Attack
"undermining their authority"

Yeah, can't have any of that and if you say Prof. Dingleberry is a turd ... better be prepared for the worst. What ever happened to that ratemyteacher thing?
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monkyyy, 2 Dec 2010 @ 6:08am

FOOTBALL IS NOT MORE IMPORTAIN THEN THE FIRST AMENDMENT
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Bengie, 2 Dec 2010 @ 6:11am

Re: Re: Misguided Attack
My Uni had an end of semester form to rate your teacher for that class.

A teacher with too many bad reviews could get punished, and I've seen it happen several times over my long 6.5 year stay.

They had fairly high standards to, so it's not like the teacher had to have a horrible review, just a not-so-good review.

Most of the time, the punishments were simple, like the teacher had to teach an extra 100 level class and were pulled off of 300+ level classes.

I was quite impressed the first time I saw this happen. I had a 200 level class and it was suppose to be one teacher, but by the time the semester started, a different teacher was there. I asked why the change and they said the other teacher got bad student reviews. We're talking about a teacher with 20+ years of working there.

After talking to several of the students from the prior semester, they said the teacher was overly picky and would knock off points for stupid crap, but the class was still good and they learned a lot.
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Chuck Norris' Enemy (deceased) (profile), 2 Dec 2010 @ 6:22am

Coach Peterson
"ALL YOUR TWEET ARE BELONG TO US."
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Danny (profile), 2 Dec 2010 @ 6:41am

Old school
John Wooden to Bill Walton: "I can't tell you how short to cut your hair, but I can tell you who is going to play on my basketball team."
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Danny (profile), 2 Dec 2010 @ 6:41am

Old school
John Wooden to Bill Walton: "I can't tell you how short to cut your hair, but I can tell you who is going to play on my basketball team."
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Michial Thompson, 2 Dec 2010 @ 6:41am

Contractual Obligation
I don't give a rat's ass if the school is public or private, the athlete isn't PAYING the school to play sports, he is USING the schools program to reduce his cost of school.

He enters into a contract that states he MUST follow school policies, if school policy is that it's employees cannot have social media accounts then he his bound to that policy.

Bitching and moaning about 1st ammendment rights is a waste of time when you give them up in the contract. Get over it and be fucking grateful your getting a reduction in your college expenses.
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Cowardly Anon, 2 Dec 2010 @ 6:54am

Why stop at tweets and facebook? Stop them from texting...that's almost like tweeting really. Better yet, I don't think they should be able to own a cell phone. Too much gray area there.

Also, msn should be out as well. And they should probably be supervised when out on their own so that they don't say anything that could be considered bad.

Honestly. I think all the students should just drop off the teams and teach the universities a lesson.
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Anonymous Coward, 2 Dec 2010 @ 7:33am

I believe they should have the right to use social networking. While it is obviously not appropiate, and should be frowned upon if it is being during an event, I don't see any other problems with them using it. Although certain problems can arise, such as a recent NFL wide reciever's tweet, it shouldn't be banned for mistakes of single individuals. If you ban one form of expression, then the others will follow relatively soon.
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Davi dL (profile), 2 Dec 2010 @ 7:55am

Constitutionality?
I think that university policies still have make common sense, not to mention be constitutional.

Banning using social media during a game? OK, but why do your players have cells phones with them during the game? I can see just not allowing players to have cell phones during games. (Why the hell do they need them?) I don't think that is unreasonable.

Banning player use social media for the entire season / requireing that they cancel accounts? BZZT! How can universities (or anyone else) justify this? Seems a pretty cut and dry issue. You don't get to restrict the legal free speech of a player, or anyone else. I don't see how tweeting critical/unfavorable speech about coaches or staff is any different than political dissent speech. Just cuz you don't like doesn't mean you get to control it. Is there a fuzzy line about appropriate behavior of players and school rules...possibly. Does a coach/university have discretion to decide who plays and who doesn't? Of course. But that is a case by case situation...not an en masse / cart blanche license for the university to ban an outlet of otherwise legal free speech outright.
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Anonymous Coward, 2 Dec 2010 @ 8:26am

Re:
The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Colleges =/= Congress.

Please try and understand the differences. Private colleges, and even state funded schools are often exempt as they are allowed to state what students may and may not do.

Just as one may not run around screaming "F*** (opposing team)" one may not Tweet or use social media during a game or season.

If one does not like the rules, one does not have to go to said school.
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Anonymous Coward, 2 Dec 2010 @ 8:41am

Re: Constitutionality?
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Congress =/= College/Uni.

You're being disingenuous. Privately operated schools are not forced to allow students freedom of speech. They regularly silence protests, assemblies and the like while also handing out disciplinary actions.

Colleges are there for people to learn. If social media is taking away from athletic and academic pursuits, than they should be banned.

When you enter a college or uni, you are accepting the implied contract to obey the rules. You pay your money (or take a scholarship), you do what they say, and 4 years (or more) later you walk out with a degree.

Football players' tuition are often heavily subsidized, if not outright covered by the school. In order to play on the team, they should have to abide by the rules set forth. If tweeting or FB are so important, they can pay for their own education by working at McDonald's like a hell of a lot of other kids.

Then, they can Tweet and use FB all they want while wishing they could go back to the sweet deal that paid for everything.

'cause Lord knows a hell of a lot of other talented football players will JUMP at the chance to give up Twitter or FB for a few months in order to get a full, free ride and graduate without a penny of debt.
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btr1701 (profile), 2 Dec 2010 @ 8:52am

Re: What about prior consent?
> as radical as requiring the student to give up
> constitutional rights.

They're not asking the students to give up any constitutional rights because the students had no constitutional free speech rights regarding a private university to begin with.

The 1st Amendment only prohibits the government from restraining speech. It has no applicability to a private individual or institution.

You can't give up what you never had to begin with.
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btr1701 (profile), 2 Dec 2010 @ 9:01am

Re: Re: Law
> Colleges =/= Congress.

> Please try and understand the differences.
> Private colleges, and even state funded schools
> are often exempt as they are allowed to state what
> students may and may not do.

Wrong. The Supreme Court ruled 200+ years ago that "Congress" in this context equals "the government" and public schools at all levels have long been held to be government actors for 1st Amendment purposes.

Only private colleges are unaffected by the 1st Amendment.
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Chris in Utah, 2 Dec 2010 @ 9:12am

Beter questioN?
A private college without a public forum for honest debate is what?
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Chris in Utah, 2 Dec 2010 @ 9:20am

Re: Re: Constitutionality?
Colleges are there for people to learn. If social media is taking away from athletic and academic pursuits, than they should be banned.
The word should is a moral argument not a logic based one. If you can provide that media of any type is detrimental to athletic and academia at all please enlighten us. Oh and the rest of your argument is on deaf ears after you use a moral argument then go on to say if it stops moving subsidize it.

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Any Mouse, 2 Dec 2010 @ 9:23am

Re: Re:
'Just as one may not run around screaming "F*** (opposing team)"'... Since when? Hell, we did this as a matter of course.
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tracker1 (profile), 2 Dec 2010 @ 9:27am

Re: Re: What about prior consent?
But: universities receive public (tax payer) funds for most of their costs... from government backed student loans, to individual grants, and other easements from the federal and state governments. It's very much a gray line here. As long as a university get no public funding, I'd be okay with it... actually, I wouldn't be. Just the same, it would be harder to argue against.
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btr1701 (profile), 2 Dec 2010 @ 9:29am

Re: Beter questioN?
> A private college without a public forum for
> honest debate is what?

That's a business model question that the college has to sort out for itself. If they're so restrictive that no one wants to go there, they'll fail.

However, there's no question that the law does not (and more importantly cannot) force them to provide one. The same 1st Amendment that protects students' free speech at public universities also protects the rights of private universities to have as much or as little free speech as they want free from government interference.
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tawsenior (profile), 2 Dec 2010 @ 9:52am

Doesn't the student pay the school...
... making the school a vendor of a service(education) and the student the customer? Changing the rules/contract without proper discussion with the client/student breaches the original contract. Maybe I'm being too simple with my reasoning, but can't an argument be made along these lines as well? Discuss.
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Bengie, 2 Dec 2010 @ 10:09am

Re: Contractual Obligation
There are plenty of examples of consumer rights, that even if signed away via a contract, cannot be forfeited EVER.

What you do with your private life should not affect anything, so long as it's not illegal.

How far can a job/school go to controlling your private life?
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