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.

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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