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

from the government-restrictions-on-speech dept

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.

Filed Under: first amendment, public universities, social networks

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  1. icon
    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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