Public and private universities are increasingly limiting players’ use of social media that one expert says constitutes in most cases illegal prior restraint and a violation of their free speech rights. -db
Citizen Media Law Center
November 9, 2010
By Eric P. Robinson
An exercise we did Friday at University of Nevada, Reno’s High School Journalism Day raised an interesting legal question: can a public university restrict its students’ use of social networking sites such as Facebook and Twitter?
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 private organizations, legally the NFL and the University of Miami can impose whatever restrictions they want on players. But the situation is more complicated for the public universities. As government entities, their ability to limit speech — including the speech via Twitter of football players — is limited by the First Amendment.
The U.S. Supreme Court famously declared in 1969 that “[neither] students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), and that high school authorities could limit speech only when they foresee “substantial disruption of or material interference with school activities.” Id. at 514. In more recent cases, the Court has found a number of circumstances in which the possibility of such disruption allowed high school administrators to restrict speech, including a profanity-laden student speech (Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)) and a banner referencing drug use (Morse v. Frederick, 551 U.S. 393 (2007)).
The court has also held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities [such as a school-sponsored newspaper] so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). The court added that students would have more freedom in publications that have served as “public forums.” Id. at 267.
All of these cases involved high school students; for college students, the courts have been more protective of First Amendment rights. Thus a college’s refusal to give a particular student group the same recognition it gave to other groups was held to violate the First Amendment, when the college’s refusal was based on a generalized fear of disruption (Healy v. James, 408 U.S. 169 (1972)) or when the college refused to recognize or provide funds to religious groups while doing so for secular groups (Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995)). While most of these cases involved on-campus speech, some lower courts, and the Supreme Court in Morse, applied these rules to off-campus speech with a possible impact on campus.
Generally, public schools can limit students’ speech only if the limitations are content-neutral, further an important government interest, and are “narrowly tailored” to further that interest. U.S. v. O’Brien, 391 U.S. 367 (1968). In most of the cases, the cited governmental interest is the school’s interest in ensuring a safe, non-disruptive educational environment.
Some courts have held that, in the context of a school athletic team, this interest includes the ability to punish insubordination amongst team members. Thus both the Sixth Circuit and the Eighth Circuit have upheld the removal of public school athletes who created and signed petitions expressing general lack of confidence in their coaches. See Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007), reh’g and reh’g en banc denied (6th Cir. Feb. 1, 2008), cert. denied, 129 S.Ct. 159, 172 L.Ed.2d 42 (U.S. Oct. 6, 2008); Wildman ex rel. Wildman v. Marshalltown Sch. Dist., 249 F.3d 768 (8th Cir. 2001).
But the Ninth Circuit found that a petition by athletes complaining of physical and psychologically intimidation by their coach was protected by the First Amendment. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 768 (9th Cir. 2006). And in Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000), the court reversed a lower court’s dismissal of First Amendment claims brought against a coach who allegedly removed a student who refused to apologize for complaining to school authorities and the police about a hazing incident.
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.
Eric P. Robinson is Deputy Director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He was previously a Staff Attorney at the Media Law Resource Center.
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