First Amendment fumble?
Growing trend sees college student athletes punished, stifled and closely monitored for their 'inappropriate' social media use
In an age where Facebook and Twitter are the go-to sources for entertainment and socializing, universities nationwide are struggling with how tightly to monitor or restrict their athletes’ online activity.
The University of North Carolina at Chapel Hill got a rude awakening to the issue in a June 2011 letter from the National Collegiate Athletic Association. The letter detailed several allegations against the school’s athletic program, among them that the school could have discovered violations of NCAA regulations had UNC been more vigilant in its social media monitoring.
“In February through June 2010,” the letter reads, “the institution did not adequately and consistently monitor social networking activity that visibly illustrated potential amateurism violations within the football program, which delayed the institution’s discovery and compounded the provision of impermissible benefits” totaling more than $27,000 between seven football players.
In March, the NCAA revoked 15 scholarships after an investigation that included scrutinizing athletes’ tweets.
Howard Wasserman, a professor of law at Florida International University specializing in sports law, said since the NCAA is a private organization, it is not examined under First Amendment scrutiny. However, many of its member schools are public institutions, so the lines grow foggy.
“When it’s a public university that carries out NCAA regulations,” Wasserman said, “it runs the potential of making those regulations the equivalent of public laws because they’re being enforced by a government actor or a government institution.”
While reputation and NCAA issues pop up all across the nation, universities are turning to private companies like Varsity Monitor and UDiligence, spending up to $10,000 a year to monitor their students’ social networking activity.
Where as some athletic departments used to have staff members cruise social media for wrongdoing, Varsity Monitor and UDiligence handle the work with automated scanning technology, which searches for questionable keywords regarding NCAA regulations.
The companies work to protect universities from criticism as well. Along with words like “free,” there are searches for words related to illegal activities like underage drinking and drug use, as well as offensive phrases and negative comments about the university.
This sort of practice raises red flags for some free speech advocates. However, Wasserman said the First Amendment relationship between the NCAA and public universities might not apply to Varsity Monitor and UDiligence.
“We’re really not sure how the analysis goes when government delegates to a private organization what it wants to do,” Wasserman said. “In some circumstances, we’ve recognized there’s enough of a connection between what a private actor is doing for the government that we’ll treat the private actor as the government, as a state actor. It really depends on what exactly the rules are, what the government is asking the private organization to do and the like.”
NCAA spokesman Cameron Schuh wrote in an email that the NCAA does not directly ban social media.
“The monitoring, regulating and expectations of social media sites used by student-athletes on college campuses are done on a campus level,” Schuh wrote, “although at times, it can also serve as an information resource for NCAA enforcement staff investigators. If a school receives information about a potential violation and it is reasonable to believe social networking information would be helpful, they should monitor this information.”
Schuh explained that it’s up to individual schools to decide how they want to approach their student athletes’ social media activity.
“If violations are discovered via social media,” he added, “it is the institution’s responsibility to report those violations and educate the individuals on how their actions could possibly affect the school and the eligibility of themselves/student-athletes. Failure to do so could result in more severe circumstances if not addressed.”
Wasserman said he’s not heard of any cases where an athlete tried to bring a First Amendment lawsuit on the issue. Even if an athlete made the claim, though, he doubted it would be successful because the athletes could potentially be considered employed by the university.
“These athletes are playing on behalf of the university,” Wasserman explained, “and they become something akin to employees — ironic given the whole thing about being students — and there’s less First Amendment protection for employee speech, particularly speech in the course of their job. I imagine those same rules probably would be held to apply to a student athlete who plays on behalf of the school, who represents the school as an athlete.”
Ken Paulson, president of the First Amendment Center, disagreed with Wasserman’s prediction.
“I generally agree with the notion that it would be an uphill battle for students to prevail; however, students are not employees,” Paulson explained. “They enter into a contractual relationship with a university to get an education and to take advantage of the full range of activities that are available.”
However, he did agree that universities are likely breaking no laws by monitoring their student athletes’ social media profiles.
“There are no First Amendment issues in maintaining team discipline and morale, so restrictions on student athletes tweeting during the season really can’t be challenged,” Paulson said. “On the other hand, if public universities are too broad in their attempt to restrict student speech, that could be successfully challenged in court.”
For instance, he said it would be overbroad if a coach banned voting in an election because it was a distraction to the athletes. Instead, coaches would need to impose restrictions that have a “rational relationship” with the activity, such as not posting about football because it weakens morale.
However, he said banning the use of social media entirely is completely unreasonable.
“It’s certainly not my position that we need legislation to govern this,” Paulson said, “or that there needs to be howls of outrage from coast to coast. We simply need to make sure that student athletes are given the latitude they deserve as students, and that any restrictions on their communications be rational.”
About Varsity Monitor and UDiligence
As detailed in a recent USA Today column written by Paulson, student athletes’ questionable uses of social media continue to lead to discipline. Last month, the NCAA stripped North Carolina’s football program of 15 scholarships after an investigation based on a player’s tweet.
Western Kentucky University suspended a running back after he tweeted negativity toward fans in October. A Lehigh University wide receiver was suspended for retweeting a racial slur in December. A high school cornerback lost his University of Michigan football scholarship after tweeting with graphic sexuality and racial insensitivity in January.
And until a court says otherwise, companies like UDiligence and Varsity Monitor will continue to peruse student athletes’ social media profiles on behalf of the universities that hire them.
UDiligence CEO Kevin Long did not return calls for comment. However, in an email to the New Jersey Institute of Technology obtained through public records, he wrote that he believes the business will grow exponentially quite soon.
“This is going to be the new drug-testing,” he said. “It will be as common as being asked to take a drug test in the next two years or less.”
Sam Carnahan, CEO and founder of Varsity Monitor, said his company advocates the use of social media — but teaches students to avoid “misuse.”
Proper use of social media, he explained, includes representing yourself the way you’d like viewers to perceive you and those you represent. It can help an athlete score a job after college and protects the university from reputation-damaging scrutiny.
“Many coaches ban the use of Facebook and Twitter,” Carnahan said, “and that is something we discourage. By using Varsity Monitor, by educating the student athletes and by using the content in a way to continue that education process, Varsity Monitor actually encourages the use of social media. It helps people use it in the right way.”
He added that Varsity Monitor is less invasive than a coach or other university official “friending” the student on Facebook. The company provides a Facebook and Twitter plug-in that students must authorize, much like popular game applications, to access their information.
Universities can edit the default list of search terms to include or remove certain phrases, and some universities include coaches in their scans. Carnahan said the company never violates social media terms of service, which means it never asks for passwords or searches private chat conversations.
Despite its purpose as a monitoring tool, Carnahan explained Varsity Monitor is not intended to be a censorship tool.
“We think we’re a real service for student athletes,” he said. “They’ve been very positive about all the work we do because we help them understand the pitfalls and the dangers of social media, and the ways they can take advantage of it.”
According to the Varsity Monitor website, its “featured clients” include UNC, Eastern Michigan University, the University of Nebraska-Lincoln and the University of Oklahoma.
UDiligence, according to its website, has been hired by Utah State University, the NJIT, Texas Southern University and the University of Louisville, among others.
Jana Doggett, Utah State’s executive associate director of athletics, said students who don’t cooperate with the university’s monitoring attempts risk getting kicked off the team.
Doggett said some students asked why they needed to cooperate, and she explained, “You don’t have to do it, but you also don’t need to be a student athlete here.” After that, she said, the students moved on.
“Being a student athlete at Utah State is not a right; it’s a privilege,” she said. “You’re given the opportunity to come here, you’re recruited and given the opportunity to have a scholarship. So we feel you need to do the right thing and represent yourself appropriately publicly, and unfortunately for this generation, that means social media.”
She said free speech advocates may indeed have something to worry about.
“To some extent, they’re correct,” Doggett said. “It is (a free speech issue), but we’re responsible for keeping them healthy. We’re responsible for making sure they get their education. To some extent, we’re pretty involved all the way around.”
Unlike USU, Eastern Michigan is only on a trial basis with Varsity Monitor.
Christopher Hoppe, EMU associate director of athletics, said despite monitoring the students, the university is very concerned with privacy regarding social media.
“We were interested in keeping track of anything that could be an NCAA violation” like inappropriate recruiting and amateurism.
Hoppe said the university is hiring Varsity Monitor to review only the public information on social media profiles. He was surprised to hear that Varsity Monitor requires students to accept an application invitation and planned to call Carnahan for an explanation.
“If you couldn’t find (the information),” Hoppe said, “we don’t want it.”
If something concerning is found, it would be dealt with on a case-by-case basis. He declined to comment whether removal from a sports team could be among the penalties.
NJIT Athletics Director Lenny Kaplan said the university has had very few problems since hiring UDiligence.
“Ninety-nine times out of 100, we’ll get the email and look on the kid’s Facebook page, and there’s really nothing wrong with it,” Kaplan said. “It’s not meant to be a police thing, it’s meant to help the students, as well as making sure they’re not embarrassing themselves or the university.”
He said NJIT’s use of UDiligence does not limit the students’ social lives. Instead, it teaches them not to share potentially damaging details. For that reason, its use is entirely optional. Still, Kaplan said, most students choose to take the opportunity.
“We don’t make it like a punishment,” Kaplan said. “We’re not turning them in. It’s not about us getting you in trouble. We take care of our own stuff, but at the end of the day, it’s about protecting them. They don’t know what they’re doing.”
UNL Life Skills Coordinator Jessie Gardner said the university declined to comment on its relationship with Varsity Monitor.
Law professor Wasserman said monitoring the accounts may not be illegal, but he sees it as morally wrong.
“We ought to be encouraging students to express themselves and speak out on things and what they believe and how they want to say it,” Wasserman said. “It seems part of being a student, and if we really think these people are student athletes, then we ought to encourage student athletes to do it in the same way we encourage students to do it.”
College, he said, is a time when students are supposed to make the transition into adulthood. Since public debate is part of being an adult, he said punishing disfavored speech goes against that transition.
Paulson agreed, explaining that just because something’s not illegal, does not mean it’s the best course of action.
“These are adults we’re talking about,” Paulson said. “It just sets a terrible tone that says, ‘We can’t trust you, and we’re going to watch your every word.’ I think that doesn’t speak to the maturity of the students or the stability of the program.”
But student athletes likely won’t challenge it because they’re afraid of being kicked off the team.
“If you’re playing for a prominent football program you’ve dreamed of all your life,” Paulson said, “you’re not going to risk that for the sake of 140 characters.”
And coaches won’t have any reason to stop until someone challenges the issue in court.
“That misses the point, because part of exploring and engaging in what — let’s face it — is constitutionally protected speech,” he said, “should be that I do it without the fear that I am going to have something of value taken away from me.”
“No, I don’t have the right to be on the basketball team,” he continued, “but nor should I have to choose between something that I enjoy and something that I’m good at — playing basketball — and something that’s going to fund an education that I might not otherwise be able to afford, and speaking out on matters of public concern.”
By Nick Glunt, SPLC staff writer
reports, Spring 2012