Intentional Grounding II: Can Public Colleges Monitor Athletes' Tweets?

On Feb. 3, The New York Times' college sports blog "The Quad" reported about the flip side of my prior post on colleges limiting athletes' social media messages and postings: A bill currently pending in the Maryland state legislature would bar colleges from requiring athletes to allow school officials to monitor the athletes' social media activities. (Another bill (House version, Senate version) would place the same restriction on employers.)

While I previously wrote about the problems with public colleges placing limitations on athletes' messages, postings, and tweets, I actually have some sympathy for university administrators trying to comply with arcane and sometimes outright ridiculous NCAA regulations regarding "student-athletes" by monitoring social media.

But the legal question is whether colleges and universities – in particular, public colleges and universities funded by the government – can do such monitoring consistent with the First Amendment.

Recent revelations of social media monitoring by the Department of Homeland Security has raised some concerns among privacy advocates, including a Freedom of Information lawsuit seeking information on the monitoring and a Congressional hearing. Another earlier lawsuit seeks information on monitoring by other government agencies.

In general, however, courts have held that users of social media sites such as Facebook and Twitter know that the posts to these sites are publicly available, even if access is restricted to the user's "friends." Thus, many courts have held that users do not have a reasonable expectation that their postings will be private, though some have held that users do have such an expectation. See, generally, Expectation of Privacy in Text Transmissions to or from Pager, Cellular Telephone, or Other Wireless Personal Communications Device, 25 A.L.R. 6th 201 (2007); and Expectation of Privacy in Internet Communications, 92 A.L.R. 5th 15 (2001).

A court may also consider that college athletes are in effect "employees" of the universities that they play for, although colleges may recoil at such a ruling for a variety of reasons. But under such an analysis, the university would have the same rights as an employer to monitor employee's social media activities, whatever they may be.

The U.S. Supreme Court specifically declined to rule on this issue in City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2630, 177 L.Ed.2d 216 (U.S. 2010). Quon involved a public employer – a city police department – which searched records of text messages sent to and from a pager issued and paid for by the city, seeking to determine whether a particular officer was using the device for personal messages during working hours.

While, as mentioned above, the Court declined to rule on whether the officer had a reasonable expectation of privacy, it did assume that such an expectation existed, and concluded that "[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable ... ." Quon, 130 S. Ct. at 2632.

As I said in my previous post, "[s]chools may penalize students for specific Tweets or posts that are likely to lead 'substantial disruption of or material interference' with the team and its activities, but cannot impose a prior restraint on athletes in mere anticipation of such a comment." But, with most courts holding that there is no reasonable expectation or privacy in postings to social media sites, public colleges and universities are probably on solid legal ground when they monitor – without any interference prior to posting – athletes' social media posts.

Except, if the bill passes, in Maryland.

Eric P. Robinson is the deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He previously worked at the Media Law Resource Center and the Reporters Committee for Freedom of the Press. In addition to his posts here, Eric also blogs at www.bloglawonline.com.  

(Image of courtesy of Flickr user Monica's Dad under CC BY 2.0 license.)

Last updated on February 23rd, 2012

New York Times article

The New York Times has weighed in with a story on this issue:
http://www.nytimes.com/2012/03/31/sports/universities-track-athletes-online-raising-legal-concerns.html

Eric P. Robinson

Students Rights & The First and Fourth Amendment

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. In 1969, to protest the Vietnam War, Mary Beth Tinker and her brother wore black armbands to school. Fearing a disruption, the administration prohibited wearing such armbands. The Tinkers were removed from school when they failed to comply, but the Supreme Court ruled that their actions were protected by the First Amendment (Tinker v. Des Moines). The Supreme Court has ruled over and over again that students do not leave their constitutional rights at the schoolhouse door.

The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. Several key points of Fourth Amendment jurisprudence are: (1) The Fourth Amendment does not prohibit all searches and seizures, only those that are “unreasonable;” (2) A search conducted pursuant to a warrant backed up by probable cause is reasonable; and (3) Roving searches generally are prohibited, and searches are supposed to be particular—searching a particular person for particular items. If a search or seizure is deemed to violate an individual’s Fourth Amendment rights, evidence from that search must be suppressed or not brought into evidence under the exclusionary rule. This rule provides that, if the police violate the Fourth Amendment, the evidence becomes a “fruit of the poisonous tree” and must be excluded.

Any policy that requires students to give access to “password-protected electronic content” is a clear violation of student’s First and Fourth Amendment Constitutional rights. I can think of no more important legal issues facing educational technology today than the balance of free speech, free thought, privacy and the boundary of the educational system. The educational system today has obviously moved beyond the walls of the schoolhouse into the digital world in which most of us now spend a significant amount of time. It is clear that administrators, teachers, and students are blundering around cyberspace with very different ideas of what is acceptable. We must come to a consensus as to what constitutes boundary areas of the educational system if we are to succeed in a successful transition to a digital world.

Samantha Young

   
 
Copyright 2007-13 Digital Media Law Project and respective authors. Except where otherwise noted,
content on this site is licensed under a Creative Commons Attribution-Noncommercial-ShareAlike 3.0 License: Details.
Use of this site is pursuant to our Terms of Use and Privacy Notice.