By Mark Conrad
Washington State University’s head football coach Mike Leach has a Twitter account of 40,000 viewers. Many of his players also have Twitter accounts. But neither will be using them because Leach instituted a total ban on such communications. The decision, reported last October, is not just a ban on football-related comments, but a complete ban, subjecting violators to suspension. Leach even asked the media to be his enforcement agents by asking them to let him know if any of his players are tweeting.
According to CBSSports.com, Leach’s ban wasn’t prompted by anything in particular. “I decided to, that’s what prompted [the ban],” Leach said. He added: “Quite frankly, if after today, you see anything from Twitter from our team — and I don’t care if it says, ‘I love life’ — I would like to see it because I will suspend them,”[1]
Leach is not the only college coach who has banned Twitter. Steve Spurrier, the head coach of the South Carolina Gamecocks football team, banned his players from using Twitter after some players had made “offensive statements” on their Twitter accounts.[2] The men’s’ basketball teams at Mississippi State and University of New Mexico have also adopted social media bans.
One can understand sanctions for particular kinds of tweets. Comments involving strategy, fellow and opposing players and coaches can harm team cohesion, and may contribute to losses on the field. Personal insults about teammates affect team cohesion. And hateful speech hurts everyone. Most professional leagues have tweeting (or anti-tweeting) policies, since the pro leagues are private entities, no First Amendment issues occur. However, Leach’s ban of one of the newest forms of communications raises some novel First Amendment questions relating to one of the oldest free speech doctrines.
Prior Restraints
The judicial antipathy to prior restraints — government ban on speech preventing publication — dates back before the passage of the First Amendment. John Milton criticized the notion as “ a form of censorship[3] and the jurist William Blackstone opined that “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications.”[4] He noted that there are punishments for false speech and blasphemy that can be utilized if the speech libelous.
The Supreme Court formally constitutionalized the common law disdain against prior restraint in in Near v. Minnesota, 283 U.S. 697, (1931), where the majority of the court invalidated a Minnesota statute that permitted law enforcement authorities to show down newspapers that engaged in “malicious, scandalous and defamatory” publications. The court concluded that such restraints are unconstitutional, creating a strong presumption against such a remedy. The court did, however, say that there may be circumstances when such restraints are justified, such as barring “the publication of sailing dates of transports or the number and location of troops.” Although the court did not state the parameters of the protection, it presumed that only in rare circumstances can the state pre-empt speech. Later cases have reaffirmed the constitutional difficulty of imposing prior restraints.[5]
However, there are circumstances where, in effect, prior restraints have been utilized with some frequency. Cases involving intellectual property enforcement,[6] privacy[7] and contractual issues[8] have allowed courts to enjoin violators. For example, injunctions have been routinely granted by courts for copyright violations under section 502 of the 1976 Copyright Act[9] And occasionally in cases involving trial proceedings[10]
Student Tweeting
Tweeting has become a primary way of disseminating quick information and its users tend to be a young demographic. Some tweets may be serious; others can be silly; some can be insulting. Suffice it to say, Twitter and other social media are exceedingly popular among college students. And such forms of instant communications are here to stay, at least for the next few years.
Because of its recent vintage, there are no cases involving challenges to these bans and no opportunity to consider whether the presumptive prohibition against prior restraints would be applicable, although such a case can be made.
In the case of Leach’s ban, there is a question of whether the constitution can apply at all. State action must be shown to apply constitutional protection. A private enterprise is not subject to First Amendment claims, but no doubt a public university is. Also, while the court given more leeway to primary and secondary schools to restricting speech that could cause “disruption to the educational environment”, it has treated university attempts to restrict speech with less deference. As the Third Circuit put it in a 2010 case: “public universities have significantly less leeway in regulating student speech than public elementary or high school.” [11]
Given the broad nature of the ban and lack of specific reason for it, such an action could very well be unconstitutional. The kind of sweeping ban that Leach imposed is precisely what the court in Near warned against. However, preventing certain kinds of tweets may well be justifiable and constitutional. If the ban was more limited — regarding team-oriented strategy — a court could very well look sympathetically at the narrowness and the justification for it. Content-oriented speech restrictions are subject to a strict scrutiny test, a difficult standard whereby there has to be a compelling interest coupled with a narrowly-based restriction. But a football coach restricting some kinds of tweets by players could pass muster. However, Leach’s attempts would make for a very difficult legal justification — if a student challenges it.
Mark Conrad is associate professor of law and ethics at the Gabelli School of Business, where he serves as Director of the Sports Business Specialization.
1. See John Breech, “Please Retweet: Mike Leach bans Washington State Players from Using Twitter, CBSSports.com, http://www.cbssports.com/collegefootball/blog/college-football-rapidreports/20670396/please-retweet-mike-leach-bans-washington-state-players-from-using-twitter (retrieved Nov. 1, 2012)
2. See J. Wes Gay, “Hands Off Twitter: Are NCAA Student-Athlete Social Media Bans Unconstitutional?, 39 Fla. St. U. L. Rev. 781 (2011).
3. Areopagitica: A speech of Mr. John Milton for the Liberty of Unlicensed Printing to the Parliament of England (1644)
4. 4 Bl. Com. 151, 152
5. See New York Times Co. V. United States, 403 U.S. 713 (1971).
6. See Elvis Presley Enterprises, Inc. v. Passport Video, 349 F. 3d 622 (9th Cir. 2003).
7. See Associated Press v. District Court for the Fifth Judicial District of Colorado, 542 U.S. 1301 (2004).
8. See Snepp v. U.S., 444 U.S. 607 (1980), which upheld a an agreement whereby a CIA agent had to get pre-publication clearance before publishing a book, even if it contained no classified material.
9. 17 U.S.C. § 502(a)
10. See Associated press v. District Court for the Fifth Judicial District of Colorado, 94 P. 3d 624 (Colo. 2004) where the state supreme court upheld a trial court’s ban on the publication of a transcript of an in camera proceeding dealing with an alleged sexual assault victim’s sexual history. The defendant in that case was LA Lakers’ star Kobe Bryant.
11. McCauley v. University of the Virgin Islands, 618 F. 3d 232 (3d Cir. 2010).
