Social media bans may violate college athletes' First Amendment rights

ByMina Kimes Via <a Href="http://espn.go.com/" Title="espn" Class="espn_sc_byline">espn </a>
September 02, 2015, 12:03 PM

&#151; -- This story appears in ESPN The Magazine's September 14 New Orleans Issue. Subscribe today!

COLLEGE IS A petri dish for self-expression, a place where students can communicate in new, complex and occasionally boneheaded ways -- unless they play sports. In recent years, a number of programs have banned their players from social media, shielding them from the evil diversions of modernity like cult leaders with underground bunkers. The men's basketball teams at Minnesota, Purdue, Iowa and Louisville all barred their players from tweeting last season. ("It poisons their minds," Cardinals coach Rick Pitino said.) The women's hoops team at Connecticut follows a similar rule. In August, ACC rivals Clemson and Florida State made headlines when their football teams banned Twitter.

Several coaches have argued that they're protecting their players from themselves, as though other college students aren't equally susceptible to harming their career prospects with stupid tweets. The difference, of course, is that normal students don't have the power to dent the reputations of their schools -- or the coffers of their athletic programs. Make no mistake: Social media bans are just one more way for coaches to control their athletes. FSU's Jimbo Fisher told the Orlando Sentinel: "When you've had success doing things, why would you not repeat it?"

Here's one reason: It might be unconstitutional.

Clemson and FSU both say their policies are imposed by the players themselves, but Fisher clearly backs the sanction; in 2012, he told reporters the rule was his decision. Other coaches, such as Geno Auriemma, are calling the shots. And because they work for the government- -- all of the schools mentioned above are public universities -- they could be liable for suppressing students' free speech. "It's a pretty clear-cut case," says Eric D. Bentley, associate general counsel at the University of Houston. "You can't argue that because they're student-athletes they have no First Amendment rights." (And yet, some have challenged those rights: Until recently, FSU's social media policy for student-athletes said: "Do not have a false sense of security about your rights to freedom of speech.") Season-long bans are particularly egregious, Bentley says, because they're so wide-ranging; such restraints fall under the overbreadth doctrine, which prevents the government from issuing gag orders.

A spokesman for UConn says Auriemma's focus is "limiting all potential distractions." He also points out that students have other options for speaking out, such as "writing a letter." A letter! But -- and it should hardly be necessary to point this out to those running institutions of higher learning -- these are not valid arguments for curbing free speech. Yes, schools can forbid students from threatening criminal activity or uttering extreme obscenities. And per a decades-old Supreme Court decision, administrators also can block students from making statements that disrupt campus activity. But these are very narrow exceptions. "You can't ban something because you think someone might engage in disruptive speech," Bentley says.

If colleges are ever forced to defend these policies in court -- there have been no significant cases yet -- they'll probably argue that student-athletes are different from their peers. Players already submit to extra oversight, like curfews and practice schedules. But unlike social media bans, those rules don't invalidate their constitutional rights. Frank LoMonte, the executive director of the nonprofit Student Press Law Center, says employers can sometimes defend limits on speech by arguing that their workers are representing the organization -- but it's unlikely that universities, so terrified of categorizing student-athletes as employees, would use that defense. "Colleges have made that bed, and now they're going to have to lie in it," he says.

It's undeniable that social media can be distracting. But it's also a facet of modern life, indispensable not just for cultural reasons but also for educational and professional ones. It's a place where athletes like Ohio State QB Cardale Jones can do everything from ruffling feathers (by stating, truthfully, that athletes aren't recruited "to play SCHOOL") to cultivating a fan base to commenting on social justice issues like #BlackLivesMatter. Coaches may not like it, but players need a megaphone too.

And they have the right to use one.

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events