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


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Oct 2015 @ 10:45am

    Finally, first comment

    Finally, the first comment

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 23 Oct 2015 @ 11:11am

    Once again we get a group finding that following the Constitution is inconvenient. I can't imagine where they would get ideas like this...

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 26 Oct 2015 @ 10:13am

      Re:

      I can't figure out how this actually will work in practice. (And of course none of the articles on the story actually answer that question. Typical.)

      Even if this plan didn't have serious 1st Amendment problems, how would a university manage to ban an app? Declare that everyone enrolled is prohibited from using it or even downloading it? Do they think they can tell people what apps they are and aren't allowed to have on their personal phones (personal property)? How will they know if someone violates the rule? The whole objection is the anonymity, so presumably the university would have no idea who the violators are. Will there be random spot inspections of people's cell phones by campus security, with punishment if the app is found on the phone?

      Be nice if any of that was actually explained.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 11:12am

    Psychopaths or Sociopaths?

    They seem to fit both groups so well:
    A disregard for laws and social mores
    A disregard for the rights of others
    A failure to feel remorse or guilt
    A tendency to display violent behavior

    Sociopathy is likely the product of childhood trauma and physical/emotional abuse. Because sociopathy appears to be learned rather than innate, sociopaths are capable of empathy in certain limited circumstances but not in others, and with a few individuals but not others.

    Sociopaths tend to be uneducated and Psychopaths tend to have higher education.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 26 Oct 2015 @ 6:27am

      Re: Psychopaths or Sociopaths?

      Methinks the word you're looking for is "narcissist." Such people don't take other people into consideration because they are lesser beings, or something, and therefore don't count. That's why they are genuinely surprised when something they thought was correct bounces back and bites them in the bum; in their world, everyone who agrees with them is the good guy and the good guys always win.

      reply to this | link to this | view in chronology ]

  • icon
    Almost Anonymous (profile), 23 Oct 2015 @ 11:15am

    A Remedy!

    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.
    I have an idea for the students experiencing the "vicious threats and harassment." Stop going to Yik Yak. Problem solved. I have no sympathy for people that feed trolls and then keep coming back for more.

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 23 Oct 2015 @ 12:12pm

      Re: A Remedy!

      The REAL question we should be asking is, is there really a need for any "remedy" at all? After, despite how the people in the story talk, these aren't little kids, they're FULL GROWN ADULTS legally capable of doing ANYTHING but drink alcohol. Do we NEED helicopter parents circling over COLLEGE AGE ADULTS??

      These parents need to get the fark out of their kids business and let them grow the hell up. They're not doing these students a favor with actions like this.

      reply to this | link to this | view in chronology ]

      • icon
        DannyB (profile), 23 Oct 2015 @ 12:30pm

        Re: Re: A Remedy!

        I don't know if it is helicopter parents.

        It can also be some self-appointed guardians who protect other people from the potential of being offended.

        Don't let the first amendment stand in your way.

        As a further observation, aren't institutions of higher learning supposed to be open to ideas which might not be the same as what you grew up with? And people different, including stupid, offensive and obnoxious people you might not have grown up with. Welcome to real life 101.

        reply to this | link to this | view in chronology ]

        • icon
          JoeCool (profile), 23 Oct 2015 @ 1:51pm

          Re: Re: Re: A Remedy!

          Helicopter parents AND self-appointed guardians. It's a dangerous mix! Well, dangerous to our rights in any case.

          And that's my whole point - if you're going to protect adults through college from real life, when are they going to learn to deal with real life? While primary and secondary schools may be glorified day care, college should be different. There are plenty of laws to protect them from predators; they don't need to be protected from "harsh language" or different lifestyles.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 24 Oct 2015 @ 12:04am

          Re: Re: Re: A Remedy!

          No, "institutions of higher learning", that is universities and colleges, are not there to educate students. They are there to make money like any other business. They educate students so they can also take in public education funds as a side line, but do not make the mistake of believe a university's primary purpose is education. There are a few universities that actually have no students at all.

          You think I'm being sarcastic? To a degree I am, but that's also exactly the way many in university administration and university based research look at university environments. They aren't there to educate. They are there to do research and/or pull a paycheck. If some students get educated along the way, that's a side effect.

          Getting sued affects the bottom line. Getting sued personally affects your personal bottom line and any future career choices. Under those circumstances, it's pretty clear the first amendment rights of students isn't going to be a high priority.

          It's even less a priority when one considers primary education. Most schools are only interested in students regurgitating the information they are being spoon fed by the state rather than forming thoughtful opinions or showing individual initiative and curiousity. This isn't a problem that's new, either. It's been a goal of public education for centuries to control the information being disseminated to students to produce results desirable to those that shape the curriculum. It's as true in the US as it is in the People's Republic of China.

          reply to this | link to this | view in chronology ]

          • icon
            btr1701 (profile), 26 Oct 2015 @ 10:17am

            Re: Re: Re: Re: A Remedy!

            > Getting sued affects the bottom line. Getting sued
            > personally affects your personal bottom line and any
            > future career choices. Under those circumstances, it's
            > pretty clear the first amendment rights of students
            > isn't going to be a high priority.

            That's why people need to start fighting back and suing the crap out of universities that do this. Make *not* standing up for free speech more expensive than caving to the social justice warriors and the government bureaucrats in the Dept. of Education.

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 24 Oct 2015 @ 10:38am

          Re: Re: Re: A Remedy!

          Applicable Quotation Grab-Bag:

          Good intentions will always be pleaded for any assumption of power. The Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters. - Daniel Webster

          The urge to save humanity is almost always a false front for the urge to rule. - H.L. Mencken

          Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies ... those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience. - C. S. Lewis

          reply to this | link to this | view in chronology ]

  • icon
    jilocasin (profile), 23 Oct 2015 @ 11:22am

    Cyber violence?

    Cyber violence? What's that?


    • epileptic seizures triggered by auto playing full screen ads

    • carpal tunnel from being forced to respond to other people's drivel

    • falling off your seat after reading something hilarious

    • stroke/heart attack from reading someone else's opinions that you didn't want to see


    While people may write some hurtful and insensitive things online, things that might even go so far as to qualify as harassment, libel, or [heaven forbid] a crime under some wishy washy hurt feelings statute, I have a hard time equating anything anyone could possible write on a app like Yik yak with violence.

    If anyone thinks otherwise, they should be forced to trade cyber violence with the good 'ol fashioned real violence. They can write their most violent messages on Yik Yak and for every message they send a MMA fighter gets to hit them.

    ....I wonder just how many posts it will take for them to admit that there is no such thing as cyber violence.

    reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 24 Oct 2015 @ 3:21am

      Re: Cyber violence?

      as you have so ably put it, there is no such thing as 'cyber violence' (unless it is in shoot-em-up online games)...

      in fact, i will go one step further and say there is no such thing as 'hate crimes'...

      there is crime, there is hate, they are not the same thing...
      i can hit you over the head and take your wallet without 'hating' you (as the gummint does every day); i can 'hate' you without committing a crime...

      i will even go so far as to say that making 'hate' a 'crime' is doing the work of the authoritarians wanting complete control of everyone everywhere: stupid libtards (mostly) ARE DOING THE HEAVY LIFTING of Empire in enforcing such an insane regime...

      further, i don't think they care, they want to eliminate 'hate' and the means don't matter to them... of course, they are total blithering idiots that they don't understand that 'eliminating' 'hate' is EQUAL TO eliminating freedom...

      again, freedom means the freedom to be wrong, otherwise you are not really free, are you ? ? ?

      reply to this | link to this | view in chronology ]

  • icon
    ed271 (profile), 23 Oct 2015 @ 11:23am

    Yay

    It warms my heart to see that we are protecting people who are offended by crap they see on Yik Yak but aren't smart enough to uninstall it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 23 Oct 2015 @ 11:24am

    Workaround

    Funny thing about the first amendment, while it enables free speech, it force exactly no one to listen,

    My first suggestion to those that have their delicate sensibilities ruffled is; don’t use Yik-Yak. My second suggestion is to create your own social media platform where you have the right to silence whatever speech you like, just understand that others are not required to use your platform, and if they don’t like what you say, they won’t.

    The best way to fight the blowhards who belittle women (or anyone else) is to ignore their comments and talk around them, that is, discuss them without addressing them where they like to talk. You know, the whole sticks, stones and broken bones thingy.

    reply to this | link to this | view in chronology ]

  • identicon
    Peter, 23 Oct 2015 @ 11:34am

    Doh

    Its like banning walls because they might get written on.

    reply to this | link to this | view in chronology ]

    • icon
      jilocasin (profile), 23 Oct 2015 @ 11:45am

      Re: Doh

      Not really, it's more like requiring every wall to be equipped with 24/7 video surveillance so that when ever anyone walks by the wall and sees anything that disturbs their sensibilities, they are allowed to get a copy of footage of the person who wrote it.

      I almost forgot, they also want the university to post a guard at every wall, and make sure they get everyone who wants to write anything's name, address, age, gender, race, ssn, political affiliation, list of organizations donated to, list of organization memberships, social media accounts, email addresses used, twitter handle and NetFlix/Amazon Prime viewing history.

      Oh, and a clear image front facing, side facing, oblique, and from behind to facilitate identification of requested images at a later time.

      See, not much at all.

      reply to this | link to this | view in chronology ]

    • icon
      Internet Zen Master (profile), 23 Oct 2015 @ 12:37pm

      Re: Doh

      Oddly enough, a 'wall' is pretty close to how some people see this app. "A bathroom wall with words of passion and hate scrawled all over it", to paraphrase the article I read awhile back about Yik Yak.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 11:39am

    Their solution to 'violent' comments is to threaten third parties with financial violence unless they act as unpaid policemen on their behalf.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 23 Oct 2015 @ 12:09pm

    Found it!

    Found a picture of Ms. Katz...

    http://i.imgur.com/grMlW.gif

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 12:26pm

    Water

    Being surrounded by water does not cause your boat to sink. It is only when you allow the water to enter the boat that it begins to weigh you down. Stop opening the door and yelling at the water to go away.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2015 @ 12:43pm

    Tired of this crap!

    If you rely on free speech to speak about how some other group should have their free speech taken away then you are also advocating that your free speech should be taken away when some other group dislikes what you say.

    You cannot have free speech while also limiting speech, pretty dang simple to understand.

    reply to this | link to this | view in chronology ]

  • identicon
    Glen, 23 Oct 2015 @ 1:06pm

    I can't wait to see what Ken Pope has to say on that. I'm sure if he did a write up, he would have direct quotes on free speech from Ms. Katz.

    reply to this | link to this | view in chronology ]

  • icon
    Kenpachi (profile), 23 Oct 2015 @ 10:37pm

    Meanwhile in Dangerous Ideologues Head Quarters...

    How can we cover Free Speech and Real Democracy with a nice thick layer of tar?

    *Quick! everyone grab a wide brush!*

    aaaaand Go!

    smh...

    If these sad creatures are "experts" I'm Elvis incarnate.

    Wait... they are experts in one field actually: victim-hood

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Oct 2015 @ 2:05am

    How about the offended people turn off Yik Yak and go on with their lives? It's like posting genuinely on /b/ and calling the police because of the insults you get in return.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Oct 2015 @ 10:28am

    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...
    It's ideas like this that lead our impressionable youth down the long, dark path to careers in law enforcement.

    reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 26 Oct 2015 @ 6:25am

    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.

    Ah, but we've been taught by the media that due process is an impediment to justice, and until we fully realise its importance to us as citizens, this kind of nonsense will continue.

    Hopefully, one day the stick will bounce off and beat people like Katz who will then understand what it's like to fall foul of laws that regulate speech off-campus.

    reply to this | link to this | view in chronology ]


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