Thursday, August 11, 2011

NCAA Student-Athlete Social Media Bans May Be Unconsitutional

In the past year, multiple NCAA colleges and universities have banned some of their student-athletes from using Twitter and other social media platforms. Some of the student-athlete social media bans that I have heard about may be unconstitutional. Schools and teams who have Twitter bans include: Villanova men's basketball, Mississippi State men's basketball, New Mexico men's basketball, Miami men's football, South Carolina men's football, Iowa men's football, Boise State men's football, and Kansas men's football.

Generally, private colleges and universities have more leeway to regulate their student's activities than public institutions. For example, Brigham Young University (BYU) has a blanket ban for all of its students against pre-marital sex. Before attending BYU, students know about the school's pre-marital sex ban and it is part of the university honor code. In addition, every student signs an annual pledge to refrain from engaging in premarital sex while enrolled at the school. The ban does not single out one group of students over another and is equally applied across the board. Students who break this rule are punished according to the school's honor code.

Institutions have the right to create reasonable rules and regulations that are not discriminatory regarding social media usage. For example, some professional sports leagues have rules that disallow social media usage for a certain time period before a game starts, during a game, and for a period of time after the game. Generally, these rules are reasonable and should not infringe upon First Amendment rights.

Setting reasonable rules regarding social media usage that don't infringe upon a student's First Amendment rights is permissable and may be prudent for both public and private institutions. However, creating an outright ban on using Twitter and/or other social media platforms for a select group of students at a public institution is a clear violation of the First Amendment and may be discriminatory against both the students and/or the social media platforms.

Schools may punish their student-athletes for social media misbehavior that in the real world would also be punishable. For example, if a student-athlete acts in a manner that is deemed inappropriate either online or in the real world he may punished. However, I believe it would be very difficult for a school to argue that a student's social media/virtual activity be punished differently than his or her real world activity.

If the school is a public institution, in addition to the First Amendment the equal protection clause of the Fourteenth Amendment may also be infringed upon by a student-athlete social media ban. According to Tinker v. Des Moines Independent Community Schools District 393 U.S. 503 (1969), students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate and that in order for public schools to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

I do not see how a public academic institution would be able to defend banning its men's football or men's basketball student-athletes from Tweeting during a season while the women's basketball team, the engineering club, or members of the student government are able to utilize Twitter or other social media platforms. In addition, it would be very difficult for a public academic institution to defend a social media ban.

If NCAA coaches are allowed to ban their student-athletes from Tweeting for an entire season/academic semester what will stop them from banning their student-athletes from utilizing email, cell phones, and taking digital photographs and/or videos? How does a coach justify banning Twitter but not Facebook, MySpace, Google +1, YouTube, blogging, posting opinions on other blogs or creating other types of user generated content? Could a university administration enforce a social media ban against certain student groups who it considers too radical or conservative? How are social media bans being enforced? What stops students from creating secret Twitter or other social media accounts?

Banning public school students from utilizing social media or requiring them to install invasive social media monitoring software (aka "cyberstalking" software) onto their personal computers/personal accounts or to Facebook friend a third party so that the third party can monitor their social media posts may create tremendous legal liability. 


To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

7 comments:

  1. If a players wished to play for a team he is expected to follow the team rules. The Constitution is not relevant here. He has a choice to join or not. If Twitter is more important, he shouldn't play the game.

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  2. the alleged fact that Villanova Men's Basketball players cannot have a Twitter is simply false. I know of at least 2 players who are on twitter and who the coach of the team regularly tweets at...

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  3. How is this any different from a coach preventing players from speaking to the press?

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  4. Anonymous, Thank you for contributing to the conversation. The Constitution is relevant because it is the foundation of our legal system. When this issue is litigated it will be interesting to see how a school defends banning one social media platform and not all of them and/or defending why the men's basketball team and/or football team are singled out for Twitter bans while other students/student groups are able to Tweet. There are multiple articles (I linked to one of them in the post) regarding Vilanova's men's basketball Twitter ban. If this is not accurate please send links to the 2 players who are active on Twitter and the Tweets from the coach to the players.

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  5. Hokie, Thanks for continuing the conversation. Creating reasonable rules that apply across the board is one thing; however, singling out a group of students because a school is afraid they may say something that the school may not like is a problem. Some schools have written rules for their student-athletes stating that all press inquiries must be referred to the athletic communications department. These types of rules are generally reasonable. If a private academic institution wants to ban Twitter it should also ban all social media usage and put it in the school's honor code and follow how BYU deals with premarital sex. However, public institutions operate under different rules and deciding to ban a form of communication because a coach and/or a few administrators feels it may be disruptive will be very difficult to defend in court.

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  6. Bradley,
    Why doensn't anonymous have a strong point relative to the "my way of the highway" argument. If playing on a school's sports team is a privilege and not a right, then why can't the coach make one of the rules a Twitter black out. It seems to me that so long as it applies to every member of the team and so long as other methods of communication are available (Facebook, MySpace, e-mail, telephone, etc.) then it would not be a Constitutional issue.

    Otherwise, why can't players choose to wear whatever socks or shorts they wish during a game. They can't. Wouldn't that be considered a violation of free speech?

    Of course anyone can initiate a lawsuit againse anyone for whatever reason. I doubt, however, that the schools' backs will be against the wall as you suggest. I think that based on the voluntary aspect of participation and the other available and convenient methods of communication would make it tough for the players to pose a winning argument.

    Great post! Lots to think about.

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  7. Jesse, You bring up some good points. There are so many permutations to the discussion. If a private university creates a social media ban in the same manner as BYU's premarital sex ban I believe that may hold up in court. However, I do not believe that would be the case for a public university.

    Do you think a court would uphold a public university's right to ban a student from drinking a soft drink off campus? Drinking soft drinks in moderation most likely will not cause any long term health problems. However, drinking too many soft drinks may cause cavities and contribute to other health ailments.

    Utilizing social media responsibly will not cause harm. However, drunk Tweeting and acting inappropriate (e.g. Former Congressman Weiner) may cause major problems.

    Banning certain students from participating in legal activities creates a slippery slope that I believe will cause more problems than anticipated. As with most cases, each school imposed social media ban may have unique facts that need to be analyzed. Therefore, I predict that this issue will be litigated at some point.

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