NCAA Athletics: Are Kentucky and Louisville Infringing on the First Amendment Rights of Players?

A tweet famously got Josh Harrellson in trouble, but did the punishment violate his First Amendment rights?

Via Ben Roberts at NextCats, Mike Miller of NBC has a blog up today discussing how major college athletics programs, specifically Kentucky and Louisville (among others) are dealing with social media:

Both schools pay about $6,000 a year to software companies for the monitoring system, which is installed on the athletes’ social media accounts. Coaches also have access to all of the athletes’ photos and videos.

...

A sampling of athletes didn’t seem to mind the system. But a Washington, D.C. attorney is mighty peeved, calling it "unbelievably outrageous" and "clearly unconstitutional." He says the condition of their scholarship shouldn’t grant officials access to their social networking accounts or be subject to punishment for "engaging in lawful speech that the university simply doesn’t like."

The Louisville Courier-Journal has a story on this, (also linked in Miller's post above) which provides the quote from the Washington lawyer, Bradley Shear. The C-J also discussed the matter with the ACLU of Kentucky, who had this to say:

The ACLU of Kentucky also calls the schools’ use of monitoring software an abridgment of free speech."When students are forced, as a condition of receiving a scholarship, to grant government officials access to all of their social networking accounts and then are subject to punishment for engaging in lawful speech that the university simply doesn’t like, we believe public universities cross the line," staff attorney William Sharp said in a statement.

I am not a lawyer myself, but of course, I have been known to opine on legal matters occasionally here, and this particular issue brings out the amateur First Amendment attorney in me.

I am aghast not to find Jon Fleischaker of Dinsmore & Stohl, who has represented the Courier-Journal itself in First Amendment cases, unquoted on this matter, although perhaps to quote him would represent some kind of conflict of interest. Fleischaker is considered a very competent First Amendment attorney, and I would have really been interested to hear his remarks. I am unfamiliar with the Washington attorney the C-J quoted, and the ACLU, while competent on free speech issues, is sometimes a bit radical in their reactions, so I tend to look for confirmation of their opinion.

On it's face, though, the ACLU's assessment looks right to me. The schools aren't asserting control over email or other electronic services it provides. Rather, it is asserting a content-based restriction on public speech made on publicly available services as a condition of offering a scholarship.

The athletes may have no problem with that, but sooner or later, somebody is going to, and when they do, will the school deny them a scholarship on that basis? If so, the athlete will certainly have a defensible, if not automatically valid, basis for a lawsuit.

The US Supreme Court has refused to weigh in on this question despite multiple opportunities to do so. Just this year, the Court declined to hear a case from Pennsylvania with a somewhat similar set of circumstances, although this was a high school and not a college:

The honor roll eighth grader at Blue Mountain Middle School in Pennsylvania said she created the parody MySpace profile as a joke. In addition to accusing the principal of engaging in sex in his office and "hitting on students and their parents," the profile said the principal’s wife looked like a man and that his son resembled a gorilla.

The offensive comments were written on a home computer during a weekend and were shared with the teen’s MySpace friends.

The student was suspended for 10 days and threatened with a civil lawsuit and criminal prosecution by the angry principal.

...

The student and her parents hired a lawyer and sued the Blue Mountain School District, claiming that school officials violated the student’s First Amendment free speech rights by punishing her for opinions she expressed on the Internet in her free time at home.

A federal judge ruled in favor of the school district, but the full Third US Circuit Court of Appeals in Philadelphia reversed, ruling 8 to 6 that the prank MySpace page caused no substantial disruption at school.

There is some similarity here, and the basis of the ruling was that the content was so outrageous that it was clearly parody, and as such, her FA rights were violated when the school punished her. The Sixth Circuit Court of Appeals concluded with:

"Neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school," the Third Circuit said, ruling for the student.

But the ruling was anything but unanimous at 8-6, and other courts have reached largely opposite conclusions. One of the main fulcrums upon which these sorts of rulings tend to turn is whether or not the content in question "disrupted" school operation. Where it did not, it seems the reflex is to protect the speech unless it is lewd, vulgar, indecent or offensive. None of the examples in the C-J article seem to meet that test, at least to my untrained eye.

What seems more troubling to me is that most of the cases above involve attempts at parody or outright attempts to embarrass school administrators. None of the speech by the UK or U of L athletes appear to be that controversial. Rather, the school seems to be trying to avoid embarrassment at an athlete's public utterances and, more pointedly, the necessity of disciplining athletes with suspensions at inopportune times in the season.

I'm no attorney, but I know we have some here on A Sea of Blue, and I would love for them, as well as from anyone else having an opinion on the this subject. From my perspective, this monitoring by the two Kentucky universities seems constitutionally suspect. The Supreme Court evidently hasn't considered the issue "ripe" yet, or perhaps the cases provided have not suited its fancy.

All I know is that it feels wrong to me to force consent to the monitoring of off-campus speech that does not use school services.

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