Advocacy Groups, Lawyers Want Dept. Of Education To Enforce Campus Yik Yak Bans, Encourage First Amendment Violations

from the 'legal-experts' dept

Here comes another attack on free speech, using college campuses as the delivery vehicle.

A large group of 72 women’s and civil rights groups have asked for the Department of Education’s help in protecting students and faculty from abusive speech and threats made on university campuses via the Yik Yak app. In a letter published this week, the organizations seek a formal "guidance" to colleges from the Department’s Office of Civil Rights (OCR) and hope to specifically put such online threats under the umbrella of federal gender and racial equality legislation.

The group wants universities to ban use of Yik Yak and other anonymous social media platforms. The angle they're taking involves federal statutes (Title VI and Title IX) that forbid universities from engaging in racial or sexual discrimination. Universities have often interpreted this code to mean that they're obligated to prevent students from harassing each other while on campus. While there is some obligation inherent in these statutes, it does not go as far as to compel schools to regulate off-campus actions, which some of these communications are.

Unfortunately, the Department of Education has muddied the legal waters in regards to these statutes, which has led many colleges to believe their federal funding could be threatened if they don't immediately overreact to every harassment allegation. It's only because of this muddying that these groups have any leverage whatsoever.

These groups want campuses to actively regulate off-campus speech and they're using Yik Yak as their test case. Yik Yak has received lots of bad press for posts made on its platform. Yik Yak doesn't compose the posts or perform any sort of curation. But to these groups -- as well as plenty of misguided school administrators -- Yik Yak is the problem, rather than the racists and sexists who use it.

Because the app gives users anonymity, the most visible target is the app itself. And because many people want speech they don't like to be buried, all sorts of stupid things are being said by people who should know better -- namely, actual practicing lawyers.

The Department of Education last issued such guidance in 2010, prior to the birth of Yik Yak and other similar apps. "Harassing conduct may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating," the Department of Education stated.

"Some universities have taken the position have that this isn't on campus, so we don't have to deal with it," said Alison Asarnow, an attorney who specializes in sexual harassment cases. "We need to impress on colleges and universities that yes, this is your responsibility; that's what we meant."

Note that Asarnow deigns to speak for the Department of Education, an entity she does not represent nor is employed by. She has determined on her own that the statutes, along with the DOE's guidance, means something it doesn't actually say. The guidance instructs universities to be proactive when it comes to "hostile environments" created by harassment, but it does not instruct schools to punish speech or regulate off-campus activities. If universities buy into this mindset (and many have), they'll be spending their federal funding on defending themselves against First Amendment lawsuits. Schools can't regulate off-campus speech and are under no legal obligation to do so, no matter what this attorney thinks.

But that's not the only clueless statement being uttered by a practicing attorney. Over at Simple Justice, Scott Greenfield quotes Debra S. Katz, another lawyer involved in the fight to bring down Yik Yak -- one that has already duped the DOE into investigating a university for "failing to investigate online harassment" via the app.

At Wednesday’s news conference, Ms. Katz said she hoped to persuade Yik Yak to be more forthcoming in revealing the identities of users who harass online, and to stop refusing to hand over users’ names to people outside law enforcement unless ordered to do so by a court.

If you can get Yik Yak to do you favors, great. But don't pretend the platform has any sort of obligation to do so. It's incredibly stupid for Katz to complain that Yik Yak will only hand over personally-identifiable information in response to the correct legal paperwork. That's how things are supposed to work. It's not a sign the system has failed. It's the system working the way it should. No social media platform should be handing out user info to whoever asks for it. This information should only be given to authorities providing court orders or warrants. It boggles the mind that a lawyer would believe it should be otherwise.

Katz isn't done, though.

Observing that the company has been quick to provide information identifying people who have threatened criminal acts such as shootings, she said it should also feel obliged to identify the violators of federal laws barring educational institutions from discriminating based on sex or race.

This is even stupider than the first half of her statement. The people making these stupid racist/sexist statements aren't violating federal law, not even if they attend universities that fall under these statutes. If the comments move toward stalking or harassment, the legal system provides remedies for victims. These remedies generate the paperwork needed to obtain user info from Yik Yak. Again, this is how the system is supposed to work. Yik Yak is not "obliged" to identify anyone without a warrant or court order. Katz wants Yik Yak to start coughing up information whenever a university -- or one of its students -- demands it, when neither Yik Yak nor the university are obligated by federal law to take any action whatsoever.

What these groups want the DOE to do is step in and force schools to participate in violating students' First Amendment rights. Of course, these legitimate First Amendment concerns are portrayed by the advocacy groups as spurious at best.

Many schools have shirked these legal obligations by citing vague First Amendment concerns. At the University of Mary Washington, for example, administrators and lawyers for the University repeatedly stated that, as a public university, they were bound by the First Amendment to permit threatening posts on Yik Yak and could not disable the application. The school’s Title IX coordinator also sent an email to students informing them that the university has “no recourse for such cyber bullying” and instructed students to file a report with Yik Yak if they became the subject of threatening or abusive comments on the social media application.

[...]

Likewise, administrators at Clemson University and Kenyon College refused to ban Yik Yak out of fear it would infringe on students’ freedom of speech.

[...]

Nonetheless, academic institutions, many mistakenly citing the First Amendment, have not been quick to take action to properly investigate anonymous online harassment and cyber-violence. Many schools have taken the stance that they have no recourse for students experiencing harassment on these sites. Students are therefore left to fend for themselves against vicious threats and harassment simply because it is conducted on a new platform.

The groups shrug off valid First Amendment concerns and follow it up by accusing schools who present harassed students with valid options (report harassers to the social media platform and/or local authorities) as somehow shirking their obligations to their students.

What these groups are demanding is a new reality where social media platforms kick loose identifiable information to whoever asks for it, for whatever reason, with the federal government's blessing. They don't seem to know how to make Yik Yak compliant with their wishes (other than taking every opportunity to portray it as a blight on humanity) but they do know how to motivate the schools. First, they threaten the carrot (federal funding tied to Title IV/IX compliance). Then they grab the stick.

Ms. Katz said she hoped the Office for Civil Rights would issue strong new guidance requiring colleges to stem online harassment “because schools, quite frankly, are very scared of lawsuits.”

Unfortunately for Katz and others who think like her, that stick can also be wielded by offending Yik Yak users, who may start filing lawsuits of their own if federally-funded schools get into the business of regulating off-campus speech.

Filed Under: anonymous speech, civil rights, colleges, free speech, harassment, title ix, title vi
Companies: yik yak

With Absolutely No Legal Basis To Do So, University Counsel Demands Yik Yak Take Down Posts, Turn Over User Info

from the cit.-'Acme-Messaging-Service-v.-Please,-We're-VERY-Upset' dept

Universities are still freaking out over the fact that some of their students are racists and assholes. But rather than deal with the inevitability that any decent-sized grouping of people will contain a percentage of both, they've opted to shoot the messenger: Yik Yak. Yik Yak provides a platform for anonymous postings that can only be seen by others within the same general location (1.5-10 miles). It also provides a voting system. With enough downvotes, a post is removed.

Despite these key ingredients, students and administrators are finding the app is to blame, rather than a portion of the people using it. So, they do ridiculous things like call for a ban of the app on campus -- something almost completely unenforceable and ultimately futile.

In some cases, they opt for other unenforceable and futile efforts. The University of Rochester (NY) has discovered that local posts on Yik Yak contain a number of unsavory statements, including possible threats towards a student and racially-motivated activity. This has prompted a completely ridiculous response from the university's legal team, which has "demanded" that Yik Yak do a number of things, including turn over a ton of information on users of the service.

UR senior counsel Richard S. Crummins last Thursday sent a letter to Yik Yak, a popular social networking app, making the demand for information, along with screenshots of the posts that UR wants to have identified…

Cummins' [sic] letter demanded:

•Removal of certain offending posts that may remain on the Yik Yak application. And while there are apparently no such postings now on the site, this request would apply to any new ones concerning UR.

•The immediate disabling of the accounts of the users responsible for those posts.

•Any information in Yik Yak's possession or control, including but not limited to names, email addresses, IP addresses, phone identifiers or other information that would help the university identify those users.

•Immediate and permanent removal of any and all use of the University of Rochester name from the Yik Yak application.

Yik Yak's FAQ indicates that it won't be doing anything Crummins has requested. It responds -- like most online services -- only to actual legal documents like court orders, subpoenas and warrants. What it doesn't do (or at least is under no obligation to do) is delete posts, establish low-level prior restraint and divulge user information to PO'ed school administrators.

Sure, a lawyer may have written this, but it has no legal footing. Yik Yak could voluntarily do all of these things (or at least attempt to), but it is certainly not compelled to do so. Some of what's being requested verges on the impossible -- unless Yik Yak hires a team to police content solely for the University of Rochester, something it certainly won't do because it would mean doing the same for every other offended entity that comes knocking.

And it should absolutely not turn over user information just because someone writes an angry letter. There are legal routes for this, and nearly all of them run through law enforcement. If the University of Rochester feels these threats are "legitimate" enough to engage its legal counsel in a round of pointless letter writing, why didn't it skip this unnecessary step and just inform the authorities?

The answer to that question, it would appear, is wholly nonsensical:

[Dean of Students Matthew] Burns said that getting a court order requiring screenshots is a possibility, but UR's focus is more one of trying to educate the campus community.

"What can we do as a community about this?" he said.

Doesn't sound like much of a "community." It doesn't even sound like "education." It sounds instead like administrators have already decided what's best for the student body and that is asking a third party to turn over identifying data so it can move on with punishments for code of conduct violations. It doesn't sound like the "student body" half of the community has been included in this discussion.

The university says it's heard back from Yik Yak but has offered no further details than it's "reviewing [Yik Yak's] response." This sounds like it got a solid "no" from the service, but hope springs eternal in those who believe they're right, even when attempting to skirt legal requirements.

UR officials say that the offensive and threatening statements on this social media app are no longer posted…

Which isn't really a concession on Yik Yak's part as much as it is the voting system. A couple of lines buried at the bottom of the story may explain the vanishing of offending posts, as well as point out something actually useful being done about the offending posts -- something that doesn't involve firing warning shots across the First Amendment's bow or demanding third party services acquiesce to demands usually made by law enforcement and backed by court orders.

Burns also said that students have formed a group, Take Back Yik Yak, that is trying to combat all the negative comments on the site with positive ones.

Fighting negative speech with more speech: a far more productive -- and RESPECTFUL -- effort. Fighting speech with speech doesn't seem to be on the list of the administration's options, despite its assertions about "education" and "community." It would rather just shut things down, as is indicated by the dean's "free speech, but…" statement.

Burns said that while UR is a strong believer in free speech, some of the postings constituted threats and were not protected speech.

I don't think the administration is entirely clear on the extents of free speech. Sure, true threats aren't protected by the First Amendment, but if the Yik Yak posts contained "true threats," then why wasn't law enforcement (which could obtain the user information the school is asking for) involved? One explanation is that the "threats" aren't nearly as threatening as the university is making them out to be. Of course, now that it's run out of options, the university may approach law enforcement to take this further, but its efforts so far haven't involved anything more than misguided actions and idiotic demand letters. The students are winning this one -- both those trying to stem the tide of offensive speech and those behaving poorly -- while the university tries to wrestle the ethereal into submission using nothing more powerful than legal department letterhead.

Filed Under: free speech, investigation, richard crummins
Companies: university of rochester, yik yak

University Thinks Yik Yak Ban It Can't Possibly Enforce Will Fix Its 'Hate Speech' Problem

from the when-you-eliminate-the-impossible,-whatever-remains-won't-be-this-ban dept

How much stupid can you possibly fit into one policy decision? The range is infinite, but the University of North Carolina is aiming high.

Administrators at the University of North Carolina (UNC) at Chapel Hill are now considering a Yik Yak ban, at the request of some students. "People have been saying some very racist, very hurtful things," Ashley Winkfield, a UNC senior, told WRAL.com.

For those of you unaware of Yik Yak's existence, much less its purpose, Yik Yak is a social media app that allows anonymous postings. This anonymity tends to bring out the worst in some people, and Yik Yak has fielded plenty of criticism along these same lines over the past several months. But it's far from the only social media platform that allows anonymous postings -- which is only part of the stupidity inherent to the school's plan to ban this particular app.

First off, there's the issue with "hate speech." Some speech clearly falls under this heading. Other stuff tends to fall under the "well, I just don't like what this person is saying" heading. Far too many educational entities tend to frown on both, often with restrictive speech policies. That's where this is going with a full head of "we'll decide what's actually protected speech" steam.

Vice Chancellor of Student Affairs Winston Crisp said UNC-Chapel Hill officials are examining options for dealing with Yik Yak.

"I think it adds little to no value to our community and creates more problems for our students than it will ever be worth," Crisp said in a statement. "We want Carolina to be a place where people feel comfortable talking about race and other issues, and we are working hard to create opportunities for them to do that in a constructive and respectful way.”

UNC doesn't get to limit speech to only what's "constructive and respectful." Its authority doesn't extend past the First Amendment. But that's only the Constitutional problems. There are additional problems -- ones more firmly grounded in "bright line" areas -- that UNC doesn't seem to have considered… like logistics… or how powerless it actually is.

How could colleges possibly stop students from downloading or using a particular app? They can't. But they can make the app slightly harder to use on-campus by blocking it from school wireless networks. That this is largely a symbolic guesture hasn't stopped several schools, including New York's Utica College and Vermont's Norwich University, from doing so.

The best UNC can do is possibly inconvenience some of its students. Those who like to fill Yik Yak with hate speech (or just unpopular speech) will move to a platform that isn't blocked, or just take the (minimal) hit on their mobile data plan. At no point will this ban ever achieve its goal of "constructive and respectful" on-campus speech, in large part because the ban will indicate to students that the university has no respect for their First Amendment rights and believes its attendees are little more than misbehaving children who need to have their toys taken away from time to time. You can't nudge people towards respect by infantilizing them, no matter how ignorant some of their speech may be (or how loud their complaints are).

Furthermore, the students who wish to see the speech of others restricted are just as naive as the children the school apparently believes they are. As Elizabeth Nolan Brown points out, these students who are shocked by nasty anonymous messages apparently feel the off-campus world is full of constructive, respectful individuals.

I find it hard to believe that before seeing these sentiments expressed on Yik-Yak, Winkfield had no idea that any fellow students might be racists and assholes. But whatever. What's more mind-boggling is how she thinks banning Yik-Yak would help here.

And how will it help in the future? If you can't learn to combat ignorance and hate within the relative safety provided by the university, how will you possibly deal with it post-graduation, in a world where speech is much harder to constrain? This student's colleagues -- the ones spewing racist crap via Yik Yak -- will move on as well. The ban won't keep racism and other ugliness bottled up forever. More speech could help deal with this problem, but the pursuit of an app ban is nothing more than sliding a policy rug over a particularly unsightly stain on the carpet. And that only works until the next stain appears. Sooner or later, you run out of rugs.

And, of course, there are alternatives in teaching people how to deal with these things. It's become something of a cliche at this point that the best way to deal with "bad" speech is "more" speech, but it does seem to be pretty effective in many cases. Even with Yik Yak. Students at Colgate University were dealing with similar problems as those described above, and a bunch of professors decided to do something about it. They didn't try to ban Yik Yak or shut it down. They started posting positive messages to the service and signed their names to it. It didn't stop all the abusive comments, of course, but it did change the tone quite a bit, and made students realize that not everyone was a horrible bully on campus.

Our nation's colleges are, for the most part, cranking out incredibly insular individuals who believe the world can be bent to their whims, thanks to the excessive coddling of every person whose feelings have been rubbed the wrong way by the abrasiveness of real life. It's not enough that they'll graduate saddled in debt and possibly armed with a useless degree. They're also being dumped into a world where everyday nastiness can't be papered over by tutting administrators and futile bans. Sure, we all would prefer the world be filled with "constructive" speech and "respectful" people, but it doesn't work like that. By providing shelter rather than pushing students to take control of these situations, these universities are doing their students -- and the future of this country -- a huge disservice.

Filed Under: bans, free speech, universities
Companies: unc, yik yak