All a Twitter: Social Networking, College Athletes, and the First Amendment

By Walsh, Davis | The William and Mary Bill of Rights Journal, December 2011 | Go to article overview

All a Twitter: Social Networking, College Athletes, and the First Amendment


Walsh, Davis, The William and Mary Bill of Rights Journal


INTRODUCTION

Social networking presents new challenges for college athletic programs as college athletes can more easily divulge information about their personal lives and opinions, information that can cause distractions to the team and can lead to National Collegiate Athletic Association (NCAA) violations and mass suspensions.1 This Note examines the extent to which college athletes have First Amendment rights,2 and discusses what avenues are appropriate for colleges and universities to curb the distractions and suspensions caused by social networking.

Underlying this entire discussion is the private-public dichotomy of college sports. Private organizations are not subject to the First Amendment because they are not governmental entities.3 On the other hand, state universities are government actors and so are subject to the First Amendment.4

This dichotomy presents achallenge for college athletics. State colleges are subject to the First Amendment,5 but the governing body for major college athletics, the NCAA, is not a government actor,6 and therefore is not subject to the First Amendment.7 A corollary to this dichotomy is that the NCAA can have a requirement, such as drug testing or restrictions on speech, that its members may not be allowed to enforce.8 College athletic programs are in a difficult position. If a college does not regulate Twitter, Facebook, and other social networking sites, and a player commits an NCAA violation using one of those mediums, the NCAA can suspend the player or declare the player ineligible.9 But if the college chooses an unconstitutional method to regulate that speech, it can be subjected to lawsuits and constitutional challenges.10 The goal of this Note is to discuss the different techniques colleges and universities use to regulate social networking and argue that constitutional methods exist. In particular, this Note compares the First Amendment implications of a "monitoring" policy,11 like one implemented by the University of North Carolina (UNC),12 with the implications of a season-long ban on certain types of social networking, similar to the ban implemented by Boise State University's (Boise State) Football Coach, Chris Petersen.13

Before discussing these particular policies, Part I of this Note describes the background from which this issue arose, specifically the "tweeting" of UNC football player Marvin Austin.14 As part of this background, this Note discusses how social networking increases the First Amendment complications for public schools and college athletes.

In Part II, this Note discusses whether the type of speech - Internet speech - or the speaker - a college athlete - is protected by the First Amendment. Part II also describes the author's broad view of the First Amendment and how such a view supports protecting social networking.

Part III defines the constitutional rights of the college athlete. It starts with the broad issue of what types of speech colleges and universities can restrict with regard to all students, and then looks specifically at the substantive constitutional rights of college athletes. Part III concludes by arguing that student athletes hold substantive constitutional rights that are protected by the First Amendment. Additionally, Part ?? examines whether the unconstitutional conditions doctrine15 applies in this case, and finds that it does apply. The result of applying the doctrine is that strict scrutiny attaches when the government implements an unconstitutional condition.16

After examining the major background issues, this Note compares and contrasts the policies of UNC and Boise State. Part IV looks at each policy to see whether the policies are susceptible to strict scrutiny requirements.17 If they are tested against that level of scrutiny, they will likely fail constitutional muster.18 To decide whether strict scrutiny applies, this Note examines whether each restriction is content-neutral19 or content-based. …

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