In a new law journal article, Frank LoMonte, executive director of the Student Press Law Center, makes a case for why universities shouldn’t regulate student-athletes’ social media accounts and online speech.
“What makes social media novel and empowering — that it is an immediate, unfiltered way to ‘speak’ with thousands of people — is also what makes it frightening to campus regulators,” LoMonte writes.
At a public institution, the First Amendment protects students’ ability to express themselves free from government sanction, and the Due Process Clause protects against the removal of public benefits in an arbitrary way or without adequate notice. Outside the realm of athletics, a public university would be constitutionally stopped from penalizing speech — especially speech that takes place on the personal computer on personal time — merely because it projects an unfavorable image of the student or the school. Is there something so unique about the college/athlete relationship that it justifies discarding well-established constitutional principles?
Colleges point to several justifications for assuming authority over student-athletes’ off-campus speech: (1) that a student-athlete is the functional equivalent of an employee because of the exchange of personal services for financial benefits, and like an employee ‘represents’ the school to the public, and (2) that voluntary participation in athletics waives — either implicitly or by written agreement — a degree of individual freedom in exchange for the ‘privilege’ of participation.
These justifications at best are legally suspect and at worst — depending on the intensity of control that schools exercise and the measure of punishment they impose — are wholly without constitutional grounding. Heavy-handed restraints on student-athletes’ ability to express themselves are inconsistent with concern for public safety and with sound educational policy. Narrower and more educationally productive alternatives exist to maintain team discipline while teaching ‘best practices’ in the use of online media. Where a more limited incursion into free expression would fulfill the government’s legitimate objectives, the Constitution requires taking that path.
LoMonte concludes that universities’ fears of reputational harm or “locker-room dissent,” among others concerns, do not outweigh fundamental freedoms offered by the First Amendment.
“Fouling the First Amendment: Why Colleges Can’t, and Shouldn’t, Control Student Athletes’ Speech on Social Media” is available through the University of Maryland’s Journal of Business & Technology Law.
To read more about the legal implications of colleges’ regulation of what athletes say on social media — and how to “audit” your own college’s social-media regulations, see the SPLC’s public-records audit, created in partnership with students from the University of Maryland’s Merrill College of Journalism. The two-part report was released in conjunction with Sunshine Week 2014 and is free to republish under Creative Commons license.