By Tyler O”Hara
In the past five years, many universities have begun imposing social media restrictions or prohibitions on their student athletes. While these policies are varied in scope and format, their aim is coherent: to assist schools in maintaining a productive environment for academic and athletic success for their student athletes.[30] This type of well-ordered environment is essential for the success of student athletes, and maintaining this environment is the responsibility of athletic administrators, coaches, and the student athletes themselves. To this end, these social media bans seek to prevent student athletes from engaging in self-sabotaging behavior, instill a sense of personal and professional responsibility, and develop a more well-adjusted, well-rounded student athlete. The court system has so far treated these policies as part of the prerogative of coaches and university administration.
As social media and social networks have risen to prominence in the past few years, student athlete”s use of these networks has become an area of concern for college athletic administrators. A number of distracting incidents with student athletes near the beginning of the decade lead to the creation of the first student athlete social media restrictions at the collegiate level.[31] These social media policies are often included in a university”s student athlete handbook and usually take the form of preventing any insensitive, racially inflammatory, or otherwise unprofessional conduct unbecoming a privileged position as a student athlete.[32] As enforcement mechanisms, student athletes submit to having their social media accounts monitored, either by athletic department staff or by third-party companies. In the case of third-party monitoring, student athletes must submit username and login information to these third party companies.[33] Requiring student athletes to tender their social media usernames and passwords has attracted negative attention from several state legislatures, however, outside of these few bills, federal case law seems to generally permit restrictive social media policies, with a few exceptions.[34]
Case Law
The basis of case law regarding student freedom of speech is Tinker v. Des Moines Indep. Cmty. School Dist.[35] Tinker held that students and teachers maintain free speech rights while on school grounds and engaged in school activities, and that school administrators only retain the right to restrict speech when such speech is the source of a “substantial disruption or material interference with school activities.”[36] More recent court cases have clarified which types of activities are so substantially disruptive.[37] Additionally, the court has ruled on direct censorship of students and student publications. In Hazelwood School Dist. v. Kuhlmeier, the Supreme Court ruled that schools may censor student publications when such censorship advances “legitimate pedagogical concerns.”[38] The court noted, however, that students would have broader expectations of First Amendment protection if such publications were “public forums.”[39] It would seem that this broader public forum protection applies to social media, the publicness of which was the very reason underlying these bans in the first place. Also, Tinker and its progeny apply to high school students. Don”t student athletes, as college students, have a broader expectation of speech protection under the Constitution? Indeed, courts have ruled that restrictions on the speech of college students must meet a higher level of constitutional scrutiny than for high school students, the “important government interest” test.[40]
However, it is important to remember that student athletes do not occupy the same place in the university community as regular students. Their membership on any athletic teams is a privilege, a privilege provided by the team”s coach.[41] While courts have generally barred schools from punishing students for speech activities outside of school, at least two Federal Circuit Courts of Appeal have found that allowing a coach to freely exercise his right to dismiss team members for insubordination is an important government interest as required by O”Brien.[42] This is consistent with the privileged position in the academic community occupied by student athletes. The power of coaches and athletic administrators is not absolute, however. There are some student athlete speech activities related to serious and unlawful conduct by coaches and administrators which are protected from even the legitimate government interests of the coach.[43] However these speech protections are very narrow, their application extremely specific, and ultimately leave much up to the discretion of coaches and athletic administrators.
In light of the court”s interpretation of student speech rights, it seems that most university imposed social media restrictions would be allowed. Although the court does recognize that college students have heightened First Amendment protections, it also recognizes that student athletes do not occupy the same place in the university community, and thus have different rights and obligations. Courts have recognized that one of the obligations of student athletes is to obey their coaches, and that coaches have a right to dismiss from their team those that do not. As more and more coaches realize that social media policies are prudent for their teams, courts will reaffirm the power of coaches to manage their teams how they may choose, and the obligation of student athletes to conform to these choices. The coach of any sports team still has a duty to treat his players with respect, maturity, and dignity, but this duty remains his to fulfill on his own, the courts do not stand on the sidelines but rather choose to sit in the stands.
Alternative Options
Despite significant evidence that the courts would allow for university-imposed social media restrictions, this level of institutional control over student-athletes, while constitutional, still raises serious concerns regarding free-speech and privacy rights. A head coach at a university with a strict social media policy could potentially use even the slightest of violations to remove a player from the team, resulting in that player losing their scholarship.[44] Since student athletes are unlikely to find help in the judicial system, including an arbitration agreement in a student athletes Athletic Aid Agreement would guarantee the opportunity to be heard before an arbitrator in the case they felt their First Amendment right had been violated. However, while this sort of dispute would likely fall under the scope of the Arbitration Act, arbitration can be considered a costly and inefficient option.[45] Yet, the cost and inefficiency argument is likely inadequate in regards to this discussion due to the written and public nature of social media sites such as Twitter and Facebook. In the vast majority of instances, the contended comment made by the student athlete would be simply be readily available for the arbitrator to read, and he would be able to make an impartial judgment on whether or not the comment violated the coaches or university”s social media policy. As a result, athletic administrators would be reluctant to support potentially improper coaching practices that would quickly be brought into the public eye and it would provide student athletes with the safeguard they so desire if necessary.
Tyler O’Hara is a rising third year law student at the University of North Carolina School of Law. He can be reached at tohara@live.unc.edu
[30] NB, critics of social media restrictions may argue that the primary goal of such policies is to allow universities to prevent comments that could potentially harm their reputation. While this is undeniably a benefit for a university, this article will help explain how such policies are ultimately designed to protect the interests and well-being of student athletes from certain realities of our justice system.
[31] See, e.g.; Brad Stephens, WKU Running Back Andrews Suspended Following Twitter Rant, WKU HERALD (October 10, 2011), at http://wkuherald.com/sports/article_82e88dbc-f37e-11e0-8dca-0019bb30f31a.html; Jason Brewer, Ryan Spadola Tweet Gets Him Suspended for FCS Playoff Game, PHILLY.COM (December 10, 2011), at http://philly.sbnation.com/2011/12/10/2625922/ryan-spadola-tweet-gets-him-suspended-for-fcs-playoff-game; Eric P. Robinson, Intentional Grounding: Can Public College Limit Athletes’ Tweets?, DIGITAL MEDIA LAW PROJECT (November 9, 2010), at http://www.dmlp.org/blog/2010/intentional-grounding-can-public-colleges-limit-athletes-tweets (explaining that by late 2010, at least five universities had instituted restrictive social media policies for student athletes, and containing links to news articles discussing those colleges’ bans).
[32] See, e.g.; MICHIGAN STATE UNIVERSITY STUDENT-ATHLETE HANDBOOK AND PLANNER 24-25 (Student-Athlete Support Services, 2012) (Articulating the Conduct Standard: Student-athletes may not use social media sites to engage in conduct that would inappropriately represent the University to the public. Examples of inappropriate conduct include:
Posting photos, videos, comments or posters showing underage drinking or personal use of alcohol or tobacco (e.g., no holding cups of alcohol, beer cans, shot glasses, etc.).
Posting photos, videos and comments that are of an obscene or sexual nature. This includes obscene gestures or links to websites of a pornographic or sexual nature.
Posting pictures, videos, comments or posters that condone drug related activity. This includes, but is not limited to, images that portray the personal use of marijuana or drug paraphernalia.
Using inappropriate or offensive language in comments, videos and other postings. This includes threats of violence and derogatory comments about race and/or gender.
[33] Rex Santus, Colleges Monitor, Restrict Athletes on Social Media, AMERICAN JOURNALISM REVIEW (March 26, 2014), at http://ajr.org/2014/03/26/social-media-monitoring-widespread-among-college-athletic-departments/.
[34] Mary Pilon, Maryland Bill Addresses College Athletes’ Social Media Privacy, NEW YORK TIMES (February 3, 2012), at http://thequad.blogs.nytimes.com/2012/02/03/maryland-bill-addresses-college-athletes-social-media-privacy/; Santus, supra note 2 (stating that at least three other states [Delaware, Illinois, and Utah] have passed laws regarding student athletes’ social media privacy).
[35] 393 U.S. 503 (1969).
[36] Id., at 514.
[37] See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (disallowing profanity); Morse v. Frederick, 551 U.S. 393 (2007) (upholding a restriction on references to drug use).
[38] 484 U.S. 260 (1988).
[39] Id., at 267.
[40] U.S. v. O’Brien, 391 U.S. 367 (1968).
[41] See Kirk Cousins, Big Ten Kickoff Luncheon Speech, Michigan State Athletics (2011) (giving a speech explaining the privilege of playing college football and how grateful he was for the opportunity. “As I now head into my final season at Michigan State, I’ve taken some time to reflect upon what has already occurred in a very fast and very full four years since I first arrived in East Lansing. I’m sure many of my peers who are up here with me have done likewise.If I were to categorize my experiences while being a part of the Big Ten, I would place much of what comes to mind under the heading . . . “PRIVILEGE.” It has been a privilege to play football in the Big Ten . . .” For a full transcript see http://www.msuspartans.com/sports/m-footbl/spec-rel/080511aac.html
[42] See Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2011); Wildman ex rel. Wildman v. Marshalltown School Dist., (8th Cir. 2001) (both upholding a coach’s dismissal of a student athlete who had criticized the coach to teammates); cf. J.S. ex rel. Snyder v. Blue Mountain School Dist., (3rd Cir. 2011) (overturning a punishment imposed upon a student for using social media to make a lewd parody profile of a school administrator, notably the accused student was not a student athlete [emphasis added]).
[43] See Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755 (9th Cir. 2006) (ruling that students had a protected First Amendment right to claim their coach was physically and psychologically abusive); Seamons v. Snow, 206 F.3d 1021 (10th Cir. 2000) (sustaining a student’s claim that his First Amendment rights were violated when he was dismissed from a sports team after refusing to apologize for reporting hazing to school officials).
[44] See Louis Bien, Former Illinois football player accuses head coach of abuse, calls for unions, SB Nation (May 10, 2015, 6:54pm), http://www.sbnation.com/college-football/2015/5/10/8582747/illinois-football-tim-beckman-abuse-simon-cvijanovic (listing a series of tweets by former University of Illinois football player Simon Cvijanovic alleging abusive behavior by head football coach Tim Beckman. Among the allegations cited, Cvijanovic accused Beckman of threatening to revoke player’s scholarships for any reason, “dangling scholarships like a carrot.”)
[45] See 9 U.S.C. 1.1-1.2 (1925) (defining the validity to arbitrate as “. . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction”).
