Constitutional Law Headline

First Amendment Challenge to Banning Student-Athletes From Using Twitter

French Englightenment writer, historian and philosopher François-Marie Arouet (also known as Voltaire) once stated, “I disapprove of what you say, but I will defend to the death your right to say it.”  If Voltaire were alive today, he would likely be very displeased that many institutions of higher education are banning certain groups of athletes from using Twitter.  While these student-athletes may not always have the most intelligent things to say on the medium, and may at times put the institutions that they represent in jeopardy with the NCAA, they certainly have the moral right to speak their minds.  Do they also have a constitutional right to Tweet?

Many of the universities that are involved in the banning of Twitter amongst thier student athletes are public institutions that receive funding from their respective states and are limited in their actions by the First and Fourteenth Amendments to the United States Constitution.  As with any Constitutional Law discussion, the most important thing to determine is the type of scrutiny a court of law would apply to the matter at hand.  The higher the level the scrutiny, the harder it is for a governmental entity to withstand a constitutional challenge.

With the recent flux of “Twitter bans” across college campuses, the bans are nothing short of prior restraints on speech itself, and not subsequent punishment for what is being Tweeted.  An injunction against future speech counts as a prior restraint.  Prior restrains are presumed to be unconstitutional.

“A threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it.” – Supreme Court case of Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).

I would argue that these university Twitter restraints demand a strict scrutiny balancing test, not only because they are effectively prior restraints, but also because schools are implementing discriminatory restrictions and prohibitions.  The Twitter bans are for student-athletes only (and often only for football players at the universities).  The general school population remains unaffected by these bans.  That looks to be clear cut discrimination.  Under the strict scrutiny test, the public institutions would have to show that their Twitter regulations are necessary to serve a compelling state interest and that they are narrowly drawn to achieve that end.  What is so compelling about banning student-athletes from Tweeting?  Are lives at stake?  And further, are the bans narrowly drawn?  Why is Twitter being singled out?  Why not Facebook?  As I once Tweeted, if I am a student-athlete and you tell me that I can’t Tweet, I am going to bring my following to Google+.

Public institutions should be focusing their efforts on educating student-athletes on the best practices of using social media sites like Twitter, instead of implementing discriminatory bans on usage of the networking platform.  Student-athletes at public institutions that have created Twitter bans may have standing to sue their schools.  Institutions of higher education need to take proactive steps to fix their social media policies and student-athletes should sit idly while they relinquish their First and Fourteenth Amendment rights.  I encourage schools and student-athletes to contact me for further guidance.

13 replies on “First Amendment Challenge to Banning Student-Athletes From Using Twitter”

Further, even if it is a content-neutral intermediate scrutiny balancing test, what is the “important objective” that the law serves? The objective is the suppression of speech, is it not? If so, it does not matter that there are alternative means of communication (i.e. Facebook).

I don’t understand this analysis. All of the “twitter bans” are put into place and enforced by team coaches, not universities – how is it different from any other team rule? A coach can require or prohibit the SAs on his team from using twitter, without it becoming state action. I fail to see the difference between this and something like requiring a SA to be at practice at a certain time. Courts have been very clear that students-athletes have no right to participate in athletics, but that it is a privilege. How does a coach banning twitter, even at a public university, constitute state action?

Those bans put into place and enforced by coaches are actually adopted and reinforced by the universities. There is a clear hierarchy of authority and the institutions are responsible for the actions that their coaches take. Practicing at a certain time has absolutely nothing to do with speech, which is at the heart of the Twitter bans. Further, this has nothing to do with a right of participation; these athletes are on the teams and only thereafter are they affected by the bans.

don’t forget that actions are speech, too so practice time could raise speech issue. but I still don’t see state action. not saying it couldn’t happen with university involvement, but not with what has happened so far. Also, SA is free to leave team and continue to tweet

Let’s put aside legality for a second…do we really want to go down the path that an “SA is free to leave team and continue to tweet?”

No, but if a court is looking at the issue, I can’t see any other conclusion based on past rulings. not saying I agree with the bans (I don’t), just saying Constitutional claim is a tough sell.

Constitutional claim is rarely an easy sell. I believe the student-athletes affected have a strong claim. I think the bigger issue is finding student-athletes who would be willing to bring their schools to court over the matter.

There was a recent case where an Indiana Judge found that a high school could not regulate what student athletes posted on social media (Facebook/Myspace) see:

I think the analysis here is similar except for the fact that there may be a difference between high school and college SA.

Does the NCAA have any restrictions? Do you foresee this as an area they may begin initiating control if suits are brought against public universities?

The NCAA does not currently restrict any SAs from using Twitter, and I cannot see the NCAA initiating control when many schools actually encourage the proper usage of social media.

Putting aside legal issues again, I think at the heart of issue is overly reactionary coaches trying to control something that they think they should because another coach did. Next year it will be something else, just the culture of sports

Wouldn’t this just be a reasonable time, place and manner speech regulation? As long as the restriction is content neutral (which I think it is) and the burden on speech is not substatial, i don’t think the university would have a problem banning the medium. There are alternative channels of communication that are not banned (Facebook, Google+, Linkedin, 4 Square), so I don’t think a court would deem the burden substantial.

Just a thought, I’d love to know what you think.

I also originally thought of that. I still say that based on its discriminatory nature and it being a prior restraint, it amounts to a strict scrutiny test. But let’s say that it demands intermediate scrutiny based on the fact that it is a TPM (time place manner) speech regulation. I still say it strikes out under the first element: “Does the regulation serve an important governmental interest?” NO!

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