Limitation of The Right to Free Speech; The First Amendment and Social Media


The First Amendment to United States (US) Constitution entrenches, among other guarantees the right to freedom of speech. It states as follows (in part):

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech….….” [Emphasis supplied]

            The Fourteen Amendment, on the other hand, encapsulates, among other provisions, the equal protection clause, which prohibits states from denying any person within its jurisdiction the equal protection of the law. Its effect is to limit state power and to ensure that people enjoy rights and liberties, without undue and unfair interference (Araiza, 2016).

            This paper shall investigate the validity of National Collegiate Athletic Association (NCAA) school’s curtailment of their student athletes’ use of social media within the purview of the First Amendment. It shall further consider whether the athletes’ right to free speech, in this case being the use of social media, fits within the Fourteenth Amendment’s equal protection clause, and if not, whether the NCAA schools’ actions raise contractual issues. Lastly, the paper shall discuss the extent to which the right to free speech can be enforced in Private universities, as contrasted with public universities.

Analysis: Application and limitation of the right to free speech

The right to free speech as a First Amendment right

As already stated, the right to free speech is a liberty protected under the First Amendment. Its application bars the government from intruding upon the right of all persons to express themselves, without censorship. But that protection, in constitutional terms, would not be absolute (Alexander, 2012). That means that the right is subject to certain limitations, within the established parameters (Currie, 2006).

Based on the aforestated, there is no gainsaying the fact that student athletes have the right to free speech. However, the issue is whether NCAA schools may, without violating the First Amendment, ban the athletes’ use of social media as a condition of playing a sport and receiving an athletic scholarship, or monitoring the athletes’ social media activity.

The US Supreme Court in the landmark case of Tinker v. Des Moines, 393 U.S. 503, 506 (1969) considered the extent to which schools could be permitted to limit students’ right to free speech. In that case, the Court held, inter alia, that a prohibition singling out a particular viewpoint is impermissible.

Therefore, whereas schools may have the right to limit rights, it can only do so if their unimpeded exercise would materially and substantially interfere with the operation of the school. The case of Vernonia Sch. Dist. 47J 1. Acton, 515 U.S. 646 (1995) is instructive of some of the special circumstances that may be considered before curtailing students’ First Amendment rights. The Court held that a public school’s policy requiring random drug tests from student-athletes was permissible within the First Amendment due to the special nature of the school environment. While considering the special nature of the school environment, Justice Scalia reasoned as follows:

“Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere, the [constitutional scrutiny imposed] cannot disregard the schools’ custodial and tutelary responsibility for children.”

           Student athletes voluntarily sign up for a number of restrictions, even higher than that of normal students (Penrose, 2012). On that basis, courts will exercise deference towards regulations made by schools such as NCAA.

            Based on the foregoing, it is within the province of NCAA schools to enact regulations cabining the exercise of right to free speech of their students if that is necessary for the achievement of their main goals and objects. What may not be permissible under the First Amendment is content-based censorship (Penrose, 2012). As such, the second leg of NCAA schools’ regulation, being close monitoring of what students post, may fail the First Amendment’s scrutiny especially if students are punished for expressed unpopular opinions or beliefs.

Social media regulation under the equal protection Clause

The Fourteenth Amendment’s Equal Protection Clause relates to the duty of State governments to protect the right of every person within its borders. Generally, since the NCAA is not state owned but private. As such, states would not be at fault (Russomano, 1969). This position notwithstanding, the government has a role to play in the protection of rights and freedoms, where private actors are involved (Horowitz, 1964).

In a number of decisions, the US Supreme Court has affirmed the application of the State action doctrine and delineated a clear scope within which this doctrine operates. Of relevance, a state action may be brought against a private entity where the nature of its actions could be termed as “public”. That arose in the Marsh v. Alabama 326 U.S. 501 (1946) wherein the Court extended the state action doctrine with a view to enhancing protection of constitutional rights. The rationale behind the Court’s finding that the doctrine was applicable to a private entity (property) was expressed in the following terms:

“[s]ince these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.”

In view of the decision in Marsh (supra), it follows that although NCCA is a private entity, its work affects the public and is meant to be in public interest. For that reason, and due to its public character, it becomes necessary to have its regulations and rules circumscribed within the legal and constitutional framework of the concerned states. That, under the Fourteenth amendment, would invite state action for equal protection of rights and liberties. 

The contractual issues in social media regulation

It could be argued that student athletes usually enter into a contract with NCAA in which they agree to give up their right to speech. But that fact alone wouldn’t make student athletes to fit as employees. Moreover, unfairness of those contracts arises because the social media regulation terms are usually imposed by NCAA, which has more contractual bargain that athletes, hence unconscionability.

            Guarantee of constitutional rights and liberties cannot be subject to monetary or material terms (LoMonte, 2014). The US Supreme court has previously affirmed the unconstitutional conditions doctrine in the case of Agency for Int’l Development v. Alliance for Open Society International, Inc. 133 S. Ct. 2321 (2013), to the effect that conditions that run afoul the First Amendment cannot be cured by contractual terms. The implication, then, would be that before invoking contract law to guarantee the limitations imposed on the right to free speech, the limitation itself must be justifiable under the First Amendment, as already elaborated elsewhere above. Failure to meet the criteria for limitation of rights under the First Amendment would not be cured by contractual agreements as fundamental rights and freedoms cannot be waived by way a contract.