Must Universities Shut Down Constitutionally Protected Speech Forums That Also Enable Student Harassment?

This case involves an uproar at University of Mary Washington over Yik Yak, the now-departed social media service that enabled geofenced anonymous comments. Initially, “Within the Yik Yak conversational thread available at UMW, several students expressed — in offensive terms — strong criticism of Feminists United and its members for their opposition to on-campus fraternities.” There were other allegations of student-on-student misogynistic behavior, which made women feel unsafe on campus.

Things escalated when the UMW administration suspended the rugby team, allegedly one of the sources of misogyny. Immediately after that announcement, “a flurry of harassing and threatening Yaks were directed at members of Feminists United, blaming them for the rugby team’s suspension. The Yaks named plaintiffs McKinsey and Musick, along with Feminists United member Grace Mann, and contained threats of physical and sexual violence…. some of the offending Yaks shared her whereabouts so that she could personally be confronted.” The university issued a campus-wide email claiming “that nothing could be done, that is, the University had “no recourse for such cyber bullying.” Instead, she encouraged UMW students to report any threatening online comments to Yik Yak or other platforms where such comments were made.” Reports to Yik Yak had no effect.

The plaintiffs sued the university for Title IX sex discrimination and retaliation, as well as 1983 rights deprivation. The district court dismissed the suit because there was not the required basis to impute liability to UMW. The appeals court partially reverses in a split decision.

The majority says UMW could have controlled this situation:

the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak’s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University’s wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students….

the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW’s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW’s network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.

Ugh. So much wrong. The majority is saying that UMW could have reduced the harassment by turning off Yik Yak. While that’s true, notice that the majority’s analysis isn’t specific to Yik Yak’s geofencing. The exact same argument could apply to harassing behavior on any other Internet service that students use to harass other students. So, for example, if the rugby team had launched a barrage of harassing tweets against the plaintiffs, the court’s logic dictates that the administration should block Twitter on the campus network. You might say that’s crazy because there are so many non-harassing conversations on Twitter that would also be squelched; but the majority never acknowledges any non-harassing conversations taking place on Yik Yak or that the majority’s blocking expectation would cause UMW to squelch legitimate discourse. That kind of collateral damage to First Amendment-protected conversations seems pretty clearly unconstitutional.

I believe Yik Yak gave universities the option to turn off its service on their campuses. But a public university blocking an online service sets up the possibility that the online service (in addition to its users) can sue the university for First Amendment violations.

I’m also perplexed why Section 230 didn’t play a role here. The plaintiffs are seeking to hold UMW for third party content on Yik Yak in part because UMW provided Internet access to the offenders. This seems to be a textbook case of Section 230.

Compounding its error, the majority says that UMW was supposed to try to unmask the Yik Yak harassers:

To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW’s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers….

the University was obliged to investigate and seek to identify those students who posted the threats and to report the threats to appropriate law enforcement agencies… the threats described in the Complaint appear to constitute criminal conduct. Steps should have been promptly taken by the University to solve the “whodunnits,” in that the only remaining unknowns with respect to those offenses were the identities of the culprits. If UMW or a law enforcement agency had successfully identified the students who posted threatening messages, the offenders could have been disciplined or prosecuted without infringing on the First Amendment

Putting aside the disquieting aspects of expecting universities to affirmatively research the identity of anonymous students, what could the university do? The university doesn’t have subpoena authority, so all it can do is politely ask Yik Yak if it will voluntarily unmask its users. Assuming Yik Yak had no interest in doing so, or its privacy policy prevented such disclosures, the majority’s legal standard expects UMW to engage in a likely-futile quest principally as a CYA endeavor. And once again, note that this not specific to Yik Yak, so if the plaintiffs had been subject to a barrage of harassing tweets from pseudonymous accounts, the majority seems to expect UMW to ask Twitter to unmask tweeters without any legal compulsion to do so.

The majority summarizes: “we cannot conclude that UMW could turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because the offending conduct took place through cyberspace.” But the majority cited many ways in which the university was not “turning a blind eye” to its problem and instead took numerous steps to redress the harassments (admittedly perhaps not as vigorously as they should have, but far more than a “blind eye”). The university legitimately feared that trying to curtail Yik Yak would expose them to First Amendment liability. The university was thus caught in a dilemma, where any decision they made would lead to a lawsuit. The majority’s analysis exacerbates that dilemma, and name-calling the dilemma-induced paralysis a “blind eye” is tone-deaf.

The majority then considers why the First Amendment doesn’t protect UMW’s decisions. It says true threats aren’t protected by the First Amendment, a true but inapposite statement. At most, only a fraction of the harassing Yik Yak posts would have qualified as “true threats,” which is a high legal standard precisely because it represents an incursion into the First Amendment. And it’s possible that none of the Yik Yak posts were true threats, because many of them made pop culture references.

The dissent makes many good points, including:

• The Yik Yak harassers may not have been students, and Yik Yak’s geofence around UMW included neighboring areas beyond the campus.
• “nothing in the Complaint supports the conclusion that the University facilitated access to the forum where the alleged harassment occurred. That is to say, the Complaint does not allege that the University owned or controlled the electronic devices on which the harassers accessed Yik Yak. Further, the Complaint does not allege facts demonstrating that any of the harassing Yaks were posted using the University’s wireless network. The Complaint simply offers no facts connecting the University to the forum in which the harassment occurred (Yik Yak) or alleging that a University-controlled means was used to access that forum (University computers or wireless network).”
• “even if the University closed any access to Yik Yak via its network (a First Amendment error described above), Yik Yak would still be readily available and easily accessed anywhere on campus via the student’s own electronic devices.”

Universities can and should take substantial efforts to protect their students from harassment, and other anti-social behavior, that interferes with student learning and personal/professional development. But this ruling goes far beyond that, turning universities into quasi-law enforcement agencies that must investigate criminal behavior and censor speech forums (including lots of constitutionally protected speech) in an overinclusive effort to squash some bad content on the forum. All of these heightened expectations put universities in a no-win squeeze where they risk being sued whatever decision they make, and that doesn’t serve anyone’s best interest. As the dissent summarizes:

the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education…Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims.

Case citation: Feminist Majority Foundation v. Hurley, No. 17-2220 (4th Cir. Dec. 19, 2018)

Other materials in the case: the district court ruling, the complaint, and the plaintiffs’ complaint to the OCR.