First Amendment fumble?

In an age whereFacebook and Twitter are the go-to sources for entertainment and socializing,universities nationwide are struggling with how tightly to monitor or restricttheir athletes’ online activity.

The University ofNorth Carolina at Chapel Hill got a rude awakening to the issue in a June 2011letter from the National Collegiate Athletic Association. The letter detailedseveral allegations against the school’s athletic program, among them that theschool could have discovered violations of NCAA regulations had UNC been morevigilant in its social media monitoring.

“In February throughJune 2010,” the letter reads, “the institution did not adequately andconsistently monitor social networking activity that visibly illustratedpotential amateurism violations within the football program, which delayed theinstitution’s discovery and compounded the provision of impermissible benefits”totaling more than $27,000 between seven football players.

In March, the NCAArevoked 15 scholarships after an investigation that included scrutinizingathletes’ tweets.

Howard Wasserman, aprofessor of law at Florida International University specializing in sportslaw, said since the NCAA is a private organization, it is not examined underFirst Amendment scrutiny. However, many of its member schools are publicinstitutions, so the lines grow foggy.

“When it’s a publicuniversity that carries out NCAA regulations,” Wasserman said, “it runs thepotential of making those regulations the equivalent of public laws becausethey’re being enforced by a government actor or a government institution.”

While reputation andNCAA issues pop up all across the nation, universities are turning to privatecompanies like Varsity Monitor and UDiligence, spending up to $10,000 a year tomonitor their students’ social networking activity.

Where as some athleticdepartments used to have staff members cruise social media for wrongdoing,Varsity Monitor and UDiligence handle the work with automated scanningtechnology, which searches for questionable keywords regarding NCAAregulations.

The companies work toprotect universities from criticism as well. Along with words like “free,”there are searches for words related to illegal activities like underagedrinking and drug use, as well as offensive phrases and negative comments aboutthe university.

This sort of practiceraises red flags for some free speech advocates. However, Wasserman said theFirst Amendment relationship between the NCAA and public universities might notapply to Varsity Monitor and UDiligence.

“We’re really not surehow the analysis goes when government delegates to a private organization whatit wants to do,” Wasserman said. “In some circumstances, we’ve recognizedthere’s enough of a connection between what a private actor is doing for thegovernment that we’ll treat the private actor as the government, as a stateactor. It really depends on what exactly the rules are, what the government isasking the private organization to do and the like.”

NCAA spokesman CameronSchuh wrote in an email that the NCAA does not directly ban social media.

“The monitoring,regulating and expectations of social media sites used by student-athletes oncollege campuses are done on a campus level,” Schuh wrote, “although at times,it can also serve as an information resource for NCAA enforcement staffinvestigators. If a school receives information about a potential violation andit is reasonable to believe social networking information would be helpful,they should monitor this information.”

Schuh explained thatit’s up to individual schools to decide how they want to approach their studentathletes’ social media activity.

“If violations arediscovered via social media,” he added, “it is the institution’s responsibilityto report those violations and educate the individuals on how their actionscould possibly affect the school and the eligibility ofthemselves/student-athletes. Failure to do so could result in more severecircumstances if not addressed.”

Wasserman said he’snot heard of any cases where an athlete tried to bring a First Amendmentlawsuit on the issue. Even if an athlete made the claim, though, he doubted itwould be successful because the athletes could potentially be consideredemployed by the university.

“These athletes areplaying on behalf of the university,” Wasserman explained, “and they becomesomething akin to employees — ironic given the whole thing about being students— and there’s less First Amendment protection for employee speech, particularlyspeech in the course of their job. I imagine those same rules probably would beheld to apply to a student athlete who plays on behalf of the school, whorepresents the school as an athlete.”

Ken Paulson, presidentof the First Amendment Center, disagreed with Wasserman’s prediction.

“I generally agreewith the notion that it would be an uphill battle for students to prevail;however, students are not employees,” Paulson explained. “They enter into acontractual relationship with a university to get an education and to takeadvantage of the full range of activities that are available.”

However, he did agreethat universities are likely breaking no laws by monitoring their studentathletes’ social media profiles.

“There are no FirstAmendment issues in maintaining team discipline and morale, so restrictions onstudent athletes tweeting during the season really can’t be challenged,”Paulson said. “On the other hand, if public universities are too broad in theirattempt to restrict student speech, that could be successfully challenged incourt.”

For instance, he saidit would be overbroad if a coach banned voting in an election because it was adistraction to the athletes. Instead, coaches would need to impose restrictionsthat have a “rational relationship” with the activity, such as not postingabout football because it weakens morale.

However, he saidbanning the use of social media entirely is completely unreasonable.

“It’s certainly not myposition that we need legislation to govern this,” Paulson said, “or that thereneeds to be howls of outrage from coast to coast. We simply need to make surethat student athletes are given the latitude they deserve as students, and thatany restrictions on their communications be rational.”

AboutVarsity Monitor and UDiligence

As detailed in arecent USA Today column written by Paulson, student athletes’questionable uses of social media continue to lead to discipline. Last month,the NCAA stripped North Carolina’s football program of 15 scholarships after aninvestigation based on a player’s tweet.

Western KentuckyUniversity suspended a running back after he tweeted negativity toward fans inOctober. A Lehigh University wide receiver was suspended for retweeting aracial slur in December. A high school cornerback lost his University ofMichigan football scholarship after tweeting with graphic sexuality and racialinsensitivity in January.

And until a court saysotherwise, companies like UDiligence and Varsity Monitor will continue toperuse student athletes’ social media profiles on behalf of the universitiesthat hire them.

UDiligence CEO KevinLong did not return calls for comment. However, in an email to the New JerseyInstitute of Technology obtained through public records, he wrote that hebelieves the business will grow exponentially quite soon.

“This is going to bethe new drug-testing,” he said. “It will be as common as being asked to take adrug test in the next two years or less.”

Sam Carnahan, CEO andfounder of Varsity Monitor, said his company advocates the use of social media— but teaches students to avoid “misuse.”

Proper use of socialmedia, he explained, includes representing yourself the way you’d like viewersto perceive you and those you represent. It can help an athlete score a jobafter college and protects the university from reputation-damaging scrutiny.

“Many coaches ban theuse of Facebook and Twitter,” Carnahan said, “and that is something wediscourage. By using Varsity Monitor, by educating the student athletes and byusing the content in a way to continue that education process, Varsity Monitoractually encourages the use of social media. It helps people use it in theright way.”

He added that VarsityMonitor is less invasive than a coach or other university official “friending”the student on Facebook. The company provides a Facebook and Twitter plug-inthat students must authorize, much like popular game applications, to accesstheir information.

Universities can editthe default list of search terms to include or remove certain phrases, and someuniversities include coaches in their scans. Carnahan said the company neverviolates social media terms of service, which means it never asks for passwordsor searches private chat conversations.

Despite its purpose asa monitoring tool, Carnahan explained Varsity Monitor is not intended to be acensorship tool.

“We think we’re a realservice for student athletes,” he said. “They’ve been very positive about allthe work we do because we help them understand the pitfalls and the dangers ofsocial media, and the ways they can take advantage of it.”


According to theVarsity Monitor website, its “featured clients” include UNC, Eastern MichiganUniversity, the University of Nebraska-Lincoln and the University of Oklahoma.

UDiligence, accordingto its website, has been hired by Utah State University, the NJIT, TexasSouthern University and the University of Louisville, among others.

Jana Doggett, UtahState’s executive associate director of athletics, said students who don’tcooperate with the university’s monitoring attempts risk getting kicked off theteam.

Doggett said somestudents asked why they needed to cooperate, and she explained, “You don’t haveto do it, but you also don’t need to be a student athlete here.” After that,she said, the students moved on.

“Being a studentathlete at Utah State is not a right; it’s a privilege,” she said. “You’regiven the opportunity to come here, you’re recruited and given the opportunityto have a scholarship. So we feel you need to do the right thing and representyourself appropriately publicly, and unfortunately for this generation, thatmeans social media.”

She said free speechadvocates may indeed have something to worry about.

“To some extent,they’re correct,” Doggett said. “It is (a free speech issue), but we’reresponsible for keeping them healthy. We’re responsible for making sure theyget their education. To some extent, we’re pretty involved all the way around.”

Unlike USU, EasternMichigan is only on a trial basis with Varsity Monitor.

Christopher Hoppe, EMUassociate director of athletics, said despite monitoring the students, theuniversity is very concerned with privacy regarding social media.

“We were interested inkeeping track of anything that could be an NCAA violation” like inappropriaterecruiting and amateurism.

Hoppe said theuniversity is hiring Varsity Monitor to review only the public information onsocial media profiles. He was surprised to hear that Varsity Monitor requiresstudents to accept an application invitation and planned to call Carnahan foran explanation.

“If you couldn’t find(the information),” Hoppe said, “we don’t want it.”

If somethingconcerning is found, it would be dealt with on a case-by-case basis. Hedeclined to comment whether removal from a sports team could be among thepenalties.

NJIT AthleticsDirector Lenny Kaplan said the university has had very few problems sincehiring UDiligence.

“Ninety-nine times outof 100, we’ll get the email and look on the kid’s Facebook page, and there’sreally nothing wrong with it,” Kaplan said. “It’s not meant to be a policething, it’s meant to help the students, as well as making sure they’re notembarrassing themselves or the university.”

He said NJIT’s use ofUDiligence does not limit the students’ social lives. Instead, it teaches themnot to share potentially damaging details. For that reason, its use is entirelyoptional. Still, Kaplan said, most students choose to take the opportunity.

“We don’t make it likea punishment,” Kaplan said. “We’re not turning them in. It’s not about usgetting you in trouble. We take care of our own stuff, but at the end of theday, it’s about protecting them. They don’t know what they’re doing.”

UNL Life SkillsCoordinator Jessie Gardner said the university declined to comment on itsrelationship with Varsity Monitor.


Law professorWasserman said monitoring the accounts may not be illegal, but he sees it asmorally wrong.

“We ought to beencouraging students to express themselves and speak out on things and whatthey believe and how they want to say it,” Wasserman said. “It seems part ofbeing a student, and if we really think these people are student athletes, thenwe ought to encourage student athletes to do it in the same way we encouragestudents to do it.”

College, he said, is atime when students are supposed to make the transition into adulthood. Sincepublic debate is part of being an adult, he said punishing disfavored speechgoes against that transition.

Paulson agreed,explaining that just because something’s not illegal, does not mean it’s thebest course of action.

“These are adultswe’re talking about,” Paulson said. “It just sets a terrible tone that says,‘We can’t trust you, and we’re going to watch your every word.’ I think thatdoesn’t speak to the maturity of the students or the stability of the program.”

But student athleteslikely won’t challenge it because they’re afraid of being kicked off the team.

“If you’re playing fora prominent football program you’ve dreamed of all your life,” Paulson said,“you’re not going to risk that for the sake of 140 characters.”

And coaches won’t haveany reason to stop until someone challenges the issue in court.

“That misses thepoint, because part of exploring and engaging in what — let’s face it — isconstitutionally protected speech,” he said, “should be that I do it withoutthe fear that I am going to have something of value taken away from me.”

“No, I don’t have theright to be on the basketball team,” he continued, “but nor should I have tochoose between something that I enjoy and something that I’m good at — playingbasketball — and something that’s going to fund an education that I might nototherwise be able to afford, and speaking out on matters of public concern.”

By Nick Glunt, SPLC staff writer