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. 


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