But public universities stand on uncertain legal footing in enforcing such prohibitions. Outside the institutional setting, government-enforced penalties on the content of speech, justified by concern that the speech might damage the speaker’s own reputation or that of the government regulator, would readily be struck down as unconstitutional.
Colleges commonly justify intruding into athletes’ social-media lives by arguing that athletic participation is a discretionary privilege, or that athletes contract away their freedom in exchange for a scholarship. These rationales, already of dubious constitutional validity, are increasingly untenable in light of the Supreme Court’s decision last term that government agencies may not condition the receipt of benefits—even entirely discretionary ones—on a broad-based waiver of First Amendment rights.
As a practical matter, however, a constitutional challenge to the regulation of athletes’ online behavior is improbable. Powerful disincentives deter athletes from taking on their institutions, and—particularly where the punishment stops with deprivation of playing opportunities—the judiciary will hesitate to wade into matters of team management. In the near term, athletes are more likely to obtain relief through a recent wave of state “social media privacy” statutes than through civil-rights litigation.
The Starting Line: Public Universities and Free Speech
Outside the athletic setting, students at public universities enjoy significant legal protection against punishment for the content of their speech. The Supreme Court has never directly addressed whether that protection is equivalent to that afforded private citizens in off-campus interactions with the government—where content-based or viewpoint-based restraints almost never survive First Amendment scrutiny—or whether some compromise level of protection applies in the institutional setting.
At the K-12 level, the Court has developed a body of student-speech jurisprudence, beginning with the landmark 1969 ruling in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, which diminishes students’ First Amendment rights “in light of the special characteristics of the school environment(.)” But the Court historically has regarded colleges with special First Amendment solicitude. Thus, the Court has regularly struck down colleges’ attempts to regulate the content of speech, whether by disciplining students (Papish v. Board of Curators of University of Missouri, 410 U.S. 667 (1973)), denying recognition to student organizations (Healy v. James, 408 U.S. 169, 180 (1972)) or withholding funding from student publications (Rosenberger v. Rectors & Visitors of University of Virginia, 515 U.S. 819 (1995)).
Even if some content-based regulation were tolerated in the name of keeping order on school grounds during the school day, extending comparable control over off-campus speech on privately owned social-media accounts is a far different matter—one with which the Supreme Court has yet to grapple. In a 1988 case about the censorship of on-campus high-school newspapers, predating the rise of smartphones and Facebook, the Court recognized that a school could refuse to provide a vehicle for speech that undermines the institution’s educational mission “even though the government could not censor similar speech outside the school.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266 (1988).
In recent years, lower courts have countenanced school discipline of K-12 students’ digitally aided speech if the speech hints at violence against school personnel (Wisniewski v. Board of Education of the Weedsport Central School District,494 F.3d 34, (2d Cir. 2007)) or against identifiable student targets (D.J.M. v. Hannibal School District, 647 F.3d 754 (8th Cir. 2011)), or constitutes a campaign of harassment victimizing students (Kowaslski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011)). In such sympathetic settings, judges have deferentially reviewed challenges to schools’ punitive authority under the in-school Tinker standard. But where speech is of greater constitutional dignity because it implicates matters of public concern, courts are less deferential. Both the Second and Third Circuits have expressed uncertainty that Tinker adequately protects speech on social media mocking school officials rather than vulnerable student targets.
In a rare case at the college level, Tatro v. University of Minnesota, 816 N.W.2d 509 (Minn. 2012), the Minnesota Supreme Court confronted a constitutional challenge to discipline of a college student for speech on a personal Facebook page. The court fashioned a novel standard, dubiously consonant with federal precedent, entitling the university to punish a graduate student studying to be a funeral director, because of speech perceived as violating the standards of her intended profession, including jokes about the cadaver she was assigned to dissect. Even if followed elsewhere, the Minnesota court’s makeshift legal standard—that colleges may punish speech if their regulations are “narrowly tailored and directly related to established professional conduct standards”—would be doubtfully relevant in the setting of college athletics, because athletes are not preparing for any single profession and few will pursue sports as a career.
Athletes Wrestle with College Controls
For decades, college athletes have accepted constraints on individual liberty in exchange for the benefits, tangible and intangible, of athletic participation. The National Collegiate Athletic Association (NCAA) strictly limits athletes’ outside employment and prohibits them, under threat of disqualification, from capitalizing on their fame through endorsements or autograph sales. But in recent years, current or former athletes have begun challenging how much their institutions “own” their lives.
During the 2013 season, a handful of football players penned “APU” on their wristbands to show solidarity for a movement, All Players United, aimed at claiming a piece of the millions the NCAA earns by licensing identifiable players’ images for use as video-game avatars. (An antitrust suit initiated by former UCLA basketball star Ed O’Bannon in the Northern District of California recently survived the NCAA’s motion to dismiss and appears headed for trial.) A regional office of the National Labor Relations Board (NLRB) ruled in March 2014 that, by virtue of their working conditions and compensation structure, Northwestern University football players are “employees” who may unionize, setting off alarms at private universities nationwide. (The NLRB regulates only private employers and not state agencies.)
Social-media restrictions will present increasing tensions in the athlete/institution relationship. Colleges’ constraints on athlete speech take three primary forms: (1) bans on Twitter or other social-media channels, either during the competitive season or year-round; (2) mandatory acceptance of institutional monitoring—increasingly done by specialized contracting firms—of even social-media postings that are not viewable to the general public, and (3) after-the-fact punishment of particular online remarks that are regarded as undermining team harmony or reflecting discredit on the college’s reputation.
In the latter category: At Ohio State University, a third-string freshman quarterback was suspended for a game after tweeting that “classes are POINTLESS.” At the University of Oklahoma, coaches “indefinitely” suspended a wide receiver for posting a cruelly sarcastic Twitter comment—“Kill yourself”—aimed at fans of the rival University of Texas. The University of Idaho removed a player from the team for a tweet criticizing the athletic director’s decision to fire the head football coach. In each instance, the speech at issue inarguably would have been constitutionally protected against punishment had the speaker been a rank-and-file student.
Because a public university ordinarily cannot punish students for speech based on reputational harm to the institution (or to themselves), or order students to abstain from social-media use, the question becomes whether something in the athlete/college relationship is so unique as to override established constitutional principles. College administrators rationalize treating athletes differently for several reasons: (1) Participation in athletics is a privilege to which no student is constitutionally entitled; (2) athletes contractually accept heightened institutional control in exchange for a package of valuable benefits; and (3) athletic participation is analogous to employment, a setting in which the employer may discipline “unprofessional” job-related speech. Each of these justifications stands on wobbly footing, both factually and constitutionally.
No Right to Be a Policeman (or a Quarterback)
For nearly a century, plaintiffs who experienced government reprisals for speech were thwarted in recovering under a First Amendment theory unless they could demonstrate that the retaliatory action deprived them of a benefit to which they had a vested constitutional entitlement. The “rights/privileges doctrine” sprouted from Justice Holmes’s throwaway line in an 1892 employment case, McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892), that a citizen “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”
That changed with the Supreme Court’s 1967 ruling in Keyishian v. Board of Regents, challenging New York’s enforcement of an anti-communism loyalty oath against state-university employees. In Keyishian, the Court renounced reliance on the “rights/privileges” distinction, holding that—even if a government agency has discretion to award or withhold a benefit—it may not do so to inhibit the exercise of constitutional rights. Subsequently, the Court declared in Rutan v. Republican Party, 497 U.S. 62, 75 n.8 (1990), that even so insignificant a slight as canceling an office birthday party could, if meant to punish constitutionally protected speech, sustain a First Amendment claim. The threshold inquiry is both a subjective one (whether the employee was actually deterred from speaking) and an objective one (whether the government’s act would be enough to chill the speech of a person of ordinary resolve).
Though discredited, the rights/privileges argument has proven a stubborn weed to kill in the setting of school discipline. In a particularly cruel application, the Fifth Circuit U.S. Court of Appeals declined to find an actionable First Amendment claim when a Texas high-school student was denied “only” the benefit of participating in cheerleading—to punish her for refusing to take part in a cheering routine requiring her to chant the name of the basketball player she’d accused of raping her.
The better view is exemplified by the district court’s resolution of high-school athletes’ First Amendment claims in T.V. v. Smith-Green School District, 807 F. Supp. 2d 767 (N.D. Ind. 2011). There, an Indiana high school removed two students from the volleyball team after a teammate’s parent complained about some mild sexual horseplay in a slumber-party video that the girls shared on social media. The judge discounted the school’s contention that the “privilege” of athletic participation may be withdrawn for any reason, even a speech-punitive one: “[A] student cannot be punished with a ban from extracurricular activities for non-disruptive speech.” (The court went on to strike as vague and overbroad a school disciplinary code making it a punishable offense to “bring discredit or dishonor upon yourself or your school,” language that is echoed in many of the college athletic-department policies that University of Maryland student researchers recently compiled.)
Because Keyishian makes it insignificant whether the speaker had a vested constitutional right in the benefit that is being withheld, colleges cannot tenably claim a free hand to punish athletes’ social-media speech on the grounds that punishment entails “only” the withdrawal of the “privilege” of athletic participation.
Unconstitutional Conditions and Athletic “Contracts”
Requiring an athlete to contractually accept essentially limitless college authority to restrict social-media access, or to punish its injudicious use, risks running afoul of the newly reinvigorated doctrine of “unconstitutional conditions.” As explained by the Supreme Court in Thomas v. Review Board, 450 U.S. 707, 716 (1981), the doctrine provides that a citizen may not be compelled to forsake First Amendment rights in exchange for receipt of government benefits (in that case, unemployment compensation).
Last term, the Court relied on the seldom-used doctrine to invalidate a speech-restrictive condition placed on federal grants for nonprofits working to combat AIDS in Africa. In Agency for International Development [USAID] v. Alliance for Open Society International, Inc., nongovernmental organizations challenged a USAID requirement that grantees enact a statement explicitly opposing the practice of prostitution—a statement that the organizations feared might limit their effectiveness. The Court held that the requirement represented an unlawful coercive use of government funding, “outside the scope of the federally funded program,” compelling applicants to refrain from constitutionally protected speech. Importantly for the college-athletics context, it made no difference in USAID that applicants had no legal entitlement to the receipt of a discretionary grant.
With USAID as precedent, broad institutional restraints on—or punishment for—speech on social media exist under a constitutional cloud. An athletic-department regulation that limits speech beyond the “scope” of athletic participation—extending, for instance, to controversial statements on political or social issues made during the offseason—is unlikely to be sustained as a valid contractual condition.
The theory that athletes “contract away” their First Amendment rights is, moreover, a poor factual fit in many instances. It has become commonplace for coaches to impose midseason bans on social media if athletes’ online speech is deemed to be distracting. No contract has been formed, modified, or consented to under these circumstances, nor could an athlete as a practical matter walk away from the lopsided “bargain” in midyear. The NCAA tightly restricts athletes’ mobility between college programs, thus reducing or (for a graduating senior) effectively eliminating the freedom of choice that is essential to formation of an enforceable contract. Further, many college athletes “walk on” to their teams without receiving scholarships or housing, yet colleges don’t afford them any greater freedom of speech on the grounds that no contractual relationship exists.
Student-Athletes as Employees?
Public employees have only limited protection against punishment by their government employers for what they say or write. Under the Supreme Court’s employee-speech jurisprudence, an employee speaking in the course of official duties (for instance, writing a memo as part of a work assignment) has essentially no First Amendment protection. When an employee speaks outside of work on a matter of public concern, the speech still may be punishable if the disruption to the working environment outweighs the employee’s interest in free expression.
No court has apparently been asked to choose between the Court’s line of student-speech cases and employee-speech cases where a First Amendment plaintiff wears both hats (or perhaps more fittingly, helmets). But college athletics is not in any traditional sense “employment,” and indeed, colleges themselves shrink from characterizing their student-athletes as employees. While the NLRB region’s recent decision in the Northwestern football team case will reignite the discussion of athletes as “employees,” colleges have long feared the legal consequences of employee status (for instance, responsibility for workers’ compensation or spousal death benefits). Colleges should not be allowed to take advantage of employee status for speech-restriction purposes if they are unwilling to extend college athletes the benefits accompanying employment.
Even under an employee-speech analysis, college athletic departments’ level of involvement in their students’ social-media lives is difficult to defend. Because it is not part of a student-athlete’s “job description” to maintain a personal Twitter account, the athlete’s speech would—if governed by the “public employee” line of case law at all—be subject to a balancing-of-interests test especially protective of speech addressing matters of social or political concern. That distinction appears nowhere in the typical college athletic department’s social-media policy.
While Promising, Constitutional Challenges are Unlikely
Ultimately, the outcome of a constitutional case will depend on the strength of the regulator’s justification. It’s unlikely that some of the justifications on which athletic departments commonly rely—protecting the public-relations image of the college, or protecting the athlete’s image from the consequences of his or her own missteps—will be afforded much weight when fundamental constitutional rights are at stake. (Outside the athletic setting, it would be unthinkable for a college to prevent a law student or a medical student from using social media on the grounds that he or she might say something improvident damaging his or her marketability.)
Nevertheless, significant hurdles discourage resort to judicial redress. A request for injunctive relief runs the risk of mootness if, while the case is pending, the athlete graduates or elects to transfer and resume an interrupted playing career at a different school. An athlete whose penalty is limited to benching or temporary suspension from the team will have difficulty demonstrating a meaningful financial loss, because the prospect of professional success—and the career impact of one missed game—are inherently speculative. (In a recent non-First Amendment case, a North Carolina appellate court dismissed as “conjectural” the claims of an athlete banned from football that he would have signed a more lucrative NFL contract with the benefit of full playing time.) Moreover, an athlete wishing to remain with the team and repair relations with the coach is highly unlikely to bring suit.
While the courts have yet to address the permissible scope of colleges’ role in athletes’ social-media lives, state legislatures have filled the void. Since 2011, legislatures in at least 10 states—Arkansas, California, Delaware, Illinois, Michigan, New Jersey, New Mexico, Oregon, Utah, and Wisconsin—have enacted “social media privacy” statutes limiting colleges’ ability to require current or prospective students to surrender private login information. A likely point of contention will be whether students may be compelled to waive these newfound statutory protections as a condition of participating in sports.
As a matter of best educational and management practices, colleges do not need (and should not want) limitless control over their athletes’ social-media lives. Enforcers have narrower and more constitutionally sound ways to police serious problems; for instance, an athlete who is abusing drugs or consorting with sports agents can be punished for the underlying illicit behavior that is publicly revealed on social media. For speech evidencing no substantive wrongdoing, colleges have the power to counsel and educate, which—unlike discipline—present no constitutional concern.
Keywords: litigation, civil rights, athletes, Twitter, social media, unconstitutional conditions
Frank LoMonte is executive director of the Student Press Law Center, a nonprofit organization advocating for students' First Amendment rights.