With college football season underway and college basketball season quickly approaching, stories of coaches and athletics departments limiting or banning student-athletes’ social media usage will become more frequent. Schools have taken a variety of approaches to address student-athletes’ improper use of social media websites like Facebook and Twitter. Some limit their usage during the season, arguing that such is necessary to ensure their focus upon the season at hand. Others have implemented various usage rules and have enacted monitoring systems to enforce those rules. Then there are those that have banned the usage of Facebook and Twitter by student-athletes altogether.
While much has been reported upon this subject, the question remains: Do policies that outright ban the use of Twitter and Facebook violate the student-athletes’ First Amendment rights?
The First Amendment to the United States Constitution grants five rights, including the freedom of speech. Freedom of speech is a fundamental personal right that is protected against state action under the Fourteenth Amendment. As such, in order for a First Amendment violation to exist, a government actor must be infringing upon someone’s freedom of speech. Therefore, this means that from a constitutional standpoint, public state universities–and not private universities–could potentially found liable for infringing upon student-athletes’ First Amendment rights.
In the realm of First Amendment law, there are several concerns related to state universities altogether banning the use of social media by student-athletes. Arguably, banning student-athletes from using social media outright amounts to a prior restraint. A prior restraint is government action that prevents speech before it occurs. Preventing student-athletes from communicating on Twitter before they do so arguably amounts to a prior restraint. Courts rarely uphold government action that amounts to a prior restraint. In order for something amounting to a prior restraint to be upheld by a court, the government (here, the public universities banning social media use by student-athletes) must prove that a societal harm will result absent the prior restraint. This would likely be difficult for a university to prove. While a student-athlete’s Twitter usage may likely cause an athletics department many headaches, it is highly unlikely it will cause a societal harm. Additionally, the school would be required to show that their limitation is narrowly drawn with reasonable and definite standards. Cutting the student-athlete off from the two communication methods used the most by his generation arguably is not a narrowly drawn limitation.
The issue, though, is that in order for a government action to be overturned as a prior restraint, is that an injunction to the action must be promptly sought. Thus, student-athletes who have been banned from social media usage would be required to seek an injunction to the restraint promptly. To date, no student-athlete has challenged his school’s banning his social media usage in the courts. Therefore, in order for student-athletes to gain ground against these bans on the First Amendment front, a student-athlete will need to seek an injunction the next time an athletics department bans social media usage. Thereafter, the court would have to give a prompt and final determination on the validity of the restraint. For the reasons set forth above, it is likely that a court would not allow a social media ban.
This analysis should cause some concern for athletics departments in public universities who have instituted outright bans of social media usage by their student-athletes. If the athletics departments have banned social media usage without having in place a contract with the student-athlete waiving their right to use social media, there is a strong likelihood that their social media policy is unconstitutional. As such, public schools seeking to ban social media usage should attempt to enter into contracts with their student-athletes whereby the student-athlete waives their right for the consideration of participating in athletics on the campus. If the school is unable to do this, the school should not institute an outright ban of social media usage. Rather, the school should adopt narrow social media usage policies that allow student-athletes to use the communication medium in a way that does not damage the school’s reputation.