A First Amendment Look at Limiting Social Media

The following article was written by Cyle Kiger.

In “The Right Balance of Social Media,” I explained a few of the legal implications of how the NCAA and universities could look at monitoring social media.  I came to the conclusion that there should be a moderate amount of monitoring, without a complete ban on social media usage for student-athletes.  Meg Penrose’s “Free Speech versus Free Education: First Amendment Considerations in Limiting Student Athletes’ Use of Social Media” dives a bit deeper into the First Amendment issue that I touched on in “The Right Balance of Social Media.”

Student-athletes voluntarily take on greater responsibilities than the rest of the student body.  Generally, students need not rid themselves of their First Amendment rights. But when looking at the issue of regulating social media, in the past, schools have had more power over regulating their own environment without legal ramifications.

The courts have actually grouped speech and discipline cases of schools and regulating agencies into a category called special needs.  A university’s special needs have to do with safety, order and discipline.

Penrose went on to say that the most relevant special needs case was Veronica School District 47J v. Acton.  Acton had a program where all student-athletes had to submit to a drug test.  Students that refused were deemed ineligible to participate in any athletic event.  By choosing to go out for the team, Justice Scalia noted, the athletes voluntarily subject themselves to more regulations.  Although a Fourth Amendment issue, Penrose argues that courts may view First Amendment challenges the same way for social media regulation.

Universities enact student codes of conduct that can limit speech to certain times, places and things of that nature.  But they cannot make content based limitations.  As in the case above states, athletes choose to compete, and at the collegiate level it happens to be highly regulated.  In a military First Amendment case (Goldman v. Weinberger), Goldman, an Orthodox Jew, desired to wear his yarmulke while on duty, but was disallowed. He sued based on his First Amendment right to practice his religious beliefs.  The Supreme Court denied his challenge because the military requires conformity to conduct.

Goldman v. Weinberger relates to collegiate athletes because much like military members, they work in environments that require a strict code of conduct to achieve a goal. If the courts follow the Goldman case, they should provide universities with less scrutiny in the regulation of student-athletes’ usage of social media.

Penrose delivers three viable reasons that athletic departments should feel comfortable with regulating or banning social media usage for student-athletes:

  1. Constitutional rights in school are not identical to those in mainstream society.
  2. The rights of athletes have been limited and more heavily regulated than their fellow classmates.
  3. Like military personnel, athletes have uniform guidelines that ensure the good of the team before the individual.

Penrose poses a good question for student-athletes:  “Touchdowns or Twitter?”  I would hope nearly all the participants of the NCAA would answer touchdowns. Student-athletes are given a gift to play a sport at a high level; take advantage of it.  Although I do not approve of full barring of social media usage to student athletes, Meg Penrose’s piece sure does make it seem plausible that the NCAA could regulate Facebook and Twitter with ease under the First Amendment.

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