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Friday, September 02, 2011
Regulating student-athletes' social media

A fellow law professor raises the following issue: What are the legal (especially First Amendment) implications of recent attempts by some schools (including, apparently, the University of North Carolina) to ban student-athletes from using Twitter and other social media? Can the schools do it? Should they do it? What arguments could student-athletes make in response and would they work?

This is the first I have heard about this issue. My initial, descriptive thought is that such a ban would be upheld on the strength of some unholy hybrid of Garcetti and Morse. Normatively, I find that a bit disheartening. I would hope for a more nuanced analysis, in which we might separate what a player does as an athlete playing for the team (and thus on behalf of the school) and as a student. After all, can it be that student-athletes have fewer First Amendment rights than student non-athletes? I remember watching a documentary a few years ago about John Wooden's UCLA dynasty, which described how Wooden permitted (and even somewhat encouraged) players such as Lew Alcindor and Bill Walton to get involved in campus activism and protests during the off-season (over Viet Nam and civil rights, primarily), with the caveat that they not do anything to embarrass the team (read: "Don't get arrested"). Forty years later and schools are afraid of having players tweet or post status updates?



Wouldn't Twitter usage by student-athletes be something that could be included in the grant-in-aid scholarship as a condition of receiving the scholarship? I almost see it as akin to social media policies of an employer to his/her employees. If there is a chance that the use of social media would bring bad publicity to a company, it very much could be something they can restrict through the language in the scholarship.

Blogger Philip Rossman-Reich -- 9/02/2011 12:33 PM  

Garcetti covered an employee's free speech. If the NCAA's defense is that the athletes are employees, they open themselves up to financial challenge, namely: the right for employees to unionize and gain their share of the multi-billion dollar college sports industry.

Blogger SkeptiSys -- 9/02/2011 4:27 PM  

I'm actually unconvinced that a blanket ban on social media would pass muster- though I suppose the Court could find a way, whether it made sense or not.

But still, Morse seemed to turn heavily on the idea of promoting drug use, and a school's legitimate interest in fighting drug use. You can make the same argument for some tweets from a student athlete...but I'd wager most would have nothing to do with the school's interests in teaching and promoting student welfare, etc.

Likewise, I think Garcetti relied on the idea of the speech being a direct part of the employment as a public official. Again, even if we're generous with the term "public official", I can't see how every tweet a student athlete puts out would meet that criteria.

And now, we're talking about the content of speech, which is absolutely ludicrous.

Blogger Colby -- 9/03/2011 12:22 AM  

Howard - I've been looking at this issue since 2006 when consulting with some athletic departments on what to do with SA Facebook accounts due to some stalking, underage drinking, and hazing issues. See this Sports Law Blog entry ( If you have access to Holt Hackney's archives, check out: "Athletic Departments Skirt Legal Lines in Dealing with FaceBook, Myspace," Sports Litigation Alert, September 2006; and "Athletic Directors Can Prevent Student Athletes from Embracing MySpace, FaceBook," Legal Issues in Collegiate Athletics, July 2006.

Currently drafting a law review piece for Ole Miss (due this Fall) that will cover this issue, which will be up on my SSRN.

While public universities have more difficulty here than private, schools will (as long as equally applied across all sports and the SA's are informed of the ban/restriction from the outset in student-athlete agreements), schools will claim regulation is permissible to (1) protect SA safety, and (2) protect the image of the school. (1) obviously being a stronger argument.

I'll email you off-line on this as well, Howard.

Blogger Tim Epstein -- 9/07/2011 11:25 AM  

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