Can a public university ban certain students’ use of social media, such as Twitter and Facebook? Yes, and it is happening. Many public and private university coaches are currently banning the use of social media among their student-athletes.
The NFL has been enforcing rules prohibiting their players from posting messages on social media websites starting 90 minutes before kickoff and ending only after postgame media obligations are fulfilled. Cincinnati Bengal player, Chad Ochocinco, fell victim to this gag rule when he was recently fined $25,000 for tweeting during a preseason game this past August. The NFL is well within its rights to place such restrictions on their athletes because it is a private organization and the players are their employees. While the NFL may enforce restrictions due to the employer-employee relationship they enjoy, the NCAA firmly maintains that student-athletes are not employees of their schools. How then can college football coaches, such as Boise State’s Chris Petersen, South Carolina’s Steve Spurrier, Kansas’s Turner Gill, and basketball coaches Mississippi State’s Rick Stansbury and Villanova’s Jay Wright, ban their student-athletes from using social media?
Many argue this overly broad limitation violates the student-athletes’ First Amendment right to freedom of speech. This blanket restriction does not only just prohibit the content of what the students tweet or post, but the use of social media altogether.
In Morse v. Frederick, a 2007 case involving a student who wore a t-shirt with a message that was believed to promote illegal drugs to a school-sponsored event, the United States Supreme Court held that the First Amendment privilege is limited. The Court ruled that schools may suppress student speech at a school-supervised event, and in this case, the content of the offending t-shirt was prohibited. The fact that he wore a t-shirt that had writing on it was not prohibited. Therefore, comparing this decision to the issue here, the content of what the student-athletes were tweeting on Twitter and posting on Facebook would be prohibited only if it were deemed inappropriate for a school-sponsored event. However, the use of social media, just as the act of wearing a shirt with writing on it, does not fall under these broad restrictions.
In constitutional issues, courts use strict scrutiny as the standard of judicial review. This is the most stringent standard and it is used to weigh the government’s interest against a constitutional right. To pass strict scrutiny, the law must satisfy three tests. First, the law must be justified by a compelling governmental interest. Second, the law must be narrowly tailored to achieve that goal or interest. And third, the law must be the least restrictive means for achieving that interest, and there cannot be a less restrictive way to effectively achieve the same means.
Applying strict scrutiny to an infringed constitutional right, such as freedom of speech, appears to make prohibiting the use of social media unconstitutional. The restriction could have been more narrowly tailored, e.g. by coaches saying their players are “not allowed to tweet on the day of the game,” in order to prevent distractions. Or, in order to prevent players from giving away team plays and secrets, under a strict scrutiny application, the coach should say players are “not allowed to tweet about practice or any other team privileged information.” So, while social media restrictions on student-athletes may appear unconstitutional, the coaches have a legal basis for such rules. Student-athletes are not employees in the strict legal sense, as they have voluntarily joined the team. While there is a constitutional right to free speech, there is no constitutional right to play football.
These players are not employees of the college or university, but members of a voluntary club. Therefore, while the university cannot place restrictions such as banning social media on the players, their coaches can.
The relationship between a university and an athlete may look like an employer-employee relationship due to the fact that student-athletes are often paid in scholarships and the university might profit from athletic events. But strictly speaking, the athletes are not technically employees, and therefore, may be subject to such restrictions like the banning of social media as well as a number of “team rules.”
Elizabeth Hall is currently a second-year student at Duquesne University. She is the Treasurer of the International Law Society and a member of the Family Law Society. Elizabeth earned her undergraduate degree at Lafayette College in Easton, PA, majoring in Art History and English. She will graduate from Duquesne Law School in 2013 and can be reached at halle1@duq.edu.
