College football’s next great social media scandal: Compelled speech?

Posted on 09-01-2015 by
Tags: football , social media , SuperBowl , college , LIT , First Amendment , college athletics , Free Speech , compelled speech , constitutional amendment , Top Stories

Today’s college coaches are clobbering the 1st Amendment. Social media is being banned; student-athletes are being muzzled. Minnesota, Purdue, Connecticut, Clemson, Florida State … they’re just a few of the transgressors.

It’s scary … putting a muzzle on student-athletes, but what if there’s something worse? What if colleges go “Orwellian” and compel their student-athletes, like puppets, to only speak from a rubber-stamped script?

Sounds crazy, but it’s no less crazy than the free speech bloodbath we’re now witnessing.

Social Media Bans and Free Speech

Banning college athletes from social media doesn’t pass the smell test. As noted in a recent ESPN article, categorizing college students as “student-athletes” doesn’t erase their First Amendment rights. Hopefully, the courts will soon jump into the First Amendment fray, and the power to ban social media will be stripped.

But if this happens, will colleges and coaches comply? Because “image is everything,” might colleges craft a clever alternative to social media bans?

Let’s face it, college athletics has a long history of shenanigans, from academic fraud, to NCAA violations, to badly behaving boosters. So if (when) social media bans fall, do colleges have a sneaky workaround?  

1st Amendment Trick Play

One workaround is to seize control of a student-athlete’s online brand.

Online reputation building is critical to student-athletes and their future job prospects. So what if colleges start offering online reputation services under the guise of a “benefit” (thrown in with tutoring, strength conditioning and dining plans)? Under this scenario, colleges could champion online branding and, in doing so, “protect” student-athletes from destructive social media posts.

The motive sounds benevolent when you consider that a future employer or professional team might pass on a student-athlete because of undesirable social media posts.

The motive sounds less benevolent when you imagine how the protection might work. It’s not a big leap to imagine pre-approved speech or “voluntarily” surrendering personal accounts to marketers/ghostwriters.

All of this is speculation, but stranger things have happened. In fact, strange things are happening right now.

Strange, isn’t it, that college coaches are banning social media despite the white hot spotlight on college free speech rights.*

Equally strange: why aren’t student-athletes speaking out (at least publicly) in defense of their 1st Amendment rights?

Unconstitutional Compelled Speech

So for the sake of argument, let’s pretend that pre-approved speech and/or “voluntarily” surrendering personal accounts becomes a reality. If it does, the courts might be forced to dust off a little known and little talked about 1st Amendment niche: compelled speech.

Nobody likes being told what to say, right? Well, it’s your Constitutional right to bite your tongue when you want to bite your tongue.

It’s called your freedom against compelled speech. As the Supreme Court said in Wooley v. Maynard, 430 U.S. 705 (U.S. 1977):

[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.

The Supreme Court ruled that New Hampshire could not require drivers to display the state’s motto “Live Free or Die” on their license plates. Forcing drivers to be “couriers” of the government’s ideological message was deemed a constitutional no-no.

Similar to Wooley, a public college, as a government entity, could take control of personal social accounts and compel student-athletes to be “couriers” of rubber-stamped messages (Without a fight? I’ll get to that). Likewise, ghostwriters/marketers could script a student-athlete’s social media dialogue, thereby compelling him/her to speak only pre-approved copy.

This type of “marketing” would have constitutional consequences, especially if the ulterior motive was to force endorsement of a college’s message or vision. Still sounds far-fetched? Consider this warning from a recent Huffington Post article:

It is tempting to use public relations, marketing and ethics to limit free speech. In business, the goals are to serve customers and maximize profits for investors, and free expression may be seen as an obstacle.

The growth of social marketing and PR on U.S. university campuses faced with more competition should not be an excuse, though, to restrict academic freedom and open inquiry. Yet, a desire for campuses to speak with "one voice" inevitably leads to social media policies gone wrong.

Just Free Speech Speculation?

At its core, social media can make or break a student-athlete, whether it be a scholarship or a job. Colleges could easily leverage this scare in commandeering social media identities.

Promised an upgrade in their “future employment” or “NFL draftability,” 20-year-olds would “voluntarily” surrender their social media to a “branding expert” if one was offered. And with this surrender disguised as “a benefit,” many would be fooled into silence.

But what if a student-athlete privately objected? Would he or she put up a fight?

If there were playing time or scholarship implications, probably not. Need evidence? Just look at today’s student-athletes and their silent submission to social media bans.

Sadly, the “wink-wink” in college athletics is that speaking out is a dangerous thing, especially in social media. The point is unintentionally made in an article by Athletic Business, which lists “positive” examples of how student-athletes should be using social media. These examples include:

  1. Say thank you.
  2. Support others (e.g., sending positive messages about peers in other sports or activities at school).
  3. Share news and humor (i.e., social media is meant to be fun).
  4. Engage in discussion with those you admire.
  5. Post anything consistent with your personal brand.

Sound advice, but in excluding “opinions” and “ideas,” the list implicitly warns student-athletes that:

  • social media + free speech = a bad and treacherous thing.

These “bad and treacherous” things are spooking student-athletes out of their constitutional rights. It’s transforming them into silent sheep, who quietly accept today’s social media bans.

But maybe the alternative to silence is worse.

Maybe it’s safer to be silent sheep than to risk becoming ideological puppets.

*College free speech in the news: Washington State announces it will not allow professors to ban words they don’t like, Missouri Governor Signs Law Banning Campus ‘Free Speech Zones’, Wesleyan student government considers cutting the Argus’ printing budget in half after diversity debate.

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