French Englightenment writer, historian and philosopher François-Marie Arouet (also known as Voltaire) once stated, “I disapprove of what you say, but I will defend to the death your right to say it.” If Voltaire were alive today, he would likely be very displeased that many institutions of higher education are banning certain groups of athletes from using Twitter. While these student-athletes may not always have the most intelligent things to say on the medium, and may at times put the institutions that they represent in jeopardy with the NCAA, they certainly have the moral right to speak their minds. Do they also have a constitutional right to Tweet?
Many of the universities that are involved in the banning of Twitter amongst thier student athletes are public institutions that receive funding from their respective states and are limited in their actions by the First and Fourteenth Amendments to the United States Constitution. As with any Constitutional Law discussion, the most important thing to determine is the type of scrutiny a court of law would apply to the matter at hand. The higher the level the scrutiny, the harder it is for a governmental entity to withstand a constitutional challenge.
With the recent flux of “Twitter bans” across college campuses, the bans are nothing short of prior restraints on speech itself, and not subsequent punishment for what is being Tweeted. An injunction against future speech counts as a prior restraint. Prior restrains are presumed to be unconstitutional.
“A threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it.” – Supreme Court case of Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).
I would argue that these university Twitter restraints demand a strict scrutiny balancing test, not only because they are effectively prior restraints, but also because schools are implementing discriminatory restrictions and prohibitions. The Twitter bans are for student-athletes only (and often only for football players at the universities). The general school population remains unaffected by these bans. That looks to be clear cut discrimination. Under the strict scrutiny test, the public institutions would have to show that their Twitter regulations are necessary to serve a compelling state interest and that they are narrowly drawn to achieve that end. What is so compelling about banning student-athletes from Tweeting? Are lives at stake? And further, are the bans narrowly drawn? Why is Twitter being singled out? Why not Facebook? As I once Tweeted, if I am a student-athlete and you tell me that I can’t Tweet, I am going to bring my following to Google+.
Public institutions should be focusing their efforts on educating student-athletes on the best practices of using social media sites like Twitter, instead of implementing discriminatory bans on usage of the networking platform. Student-athletes at public institutions that have created Twitter bans may have standing to sue their schools. Institutions of higher education need to take proactive steps to fix their social media policies and student-athletes should sit idly while they relinquish their First and Fourteenth Amendment rights. I encourage schools and student-athletes to contact me for further guidance.