People often seek to restrict new means of communication in ways that would never be applied to older forms of communication, sometimes based on fear of new technologies or illogical rationales. A recent example is the demand by 72 left-wing women’s groups and civil-rights groups that the federal government force colleges to block access to the social media app Yik Yak. They claim such measures are required by the federal civil-rights laws Title IX and Title VI. They want colleges to ban a form of social media just because a few users make racist, sexist, or threatening comments on it.
The fact that a few users make bigoted or even threatening comments is not sufficient reason to shut down an entire medium of communication. No one would advocate banning demonstrations just because a few demonstrators uttered racist or inappropriate comments. New modes of communication like Yik Yak should not be treated any differently or worse. As I explain at this link, if the federal government granted their demand to crack down on Yik Yak, it would flagrantly violate the First Amendment.
The Supreme Court’s 1997 decision striking down an Internet decency law likened such sweeping censorship to “burning the house to roast the pig.” In The Washington Post, law professor Eugene Volokh correctly described these women’s groups as a “national coalition in favor of campus censorship.”
There is no racism or sexism exception to the First Amendment on campus, as court rulings striking down campus speech codes like Dambrot v. Central Michigan University (1995) make clear. Yet the October 21 letter to the Office for Civil Rights signed by these 72 groups seeks to ban as “race-based harassment” comments such as claiming that black “culture just isn’t conducive to a life of success.” Such comments cannot be banned as “harassment” without violating the First Amendment. The Ninth Circuit Court of Appeals made that clear in its 2010 Rodriguez decision, which cited the First Amendment to dismiss a racial-harassment lawsuit over a professor’s racially charged anti-immigration e-mails.
Yet their letter urges the blocking or “geo-fencing of anonymous social media applications that are used to” make bigoted or otherwise “harassing” remarks, and “barring the use of campus wi-fi to view or post to these applications.”
The irony of the letter, as Amanda Hess of Slate notes, is that “Feminists and civil rights groups are trying to get universities to block the very app that gives marginalized students a voice on campus. . . .The app is massively and broadly popular among American college students, including female students, LGBTQ students, and students of color. . . .Yik Yak is an essential outlet for many college students who are adjusting to a new community and exploring their own identities.. . . Students routinely use Yik Yak to discuss experiences with mental illness or same-sex attraction or other intimate subjects they don’t feel comfortable announcing on the quad.” The demand to block Yik Yak reflects a double standard we would never apply to speech on “city streets, private homes,” or other traditional modes of communication.
As I explain at this link, there is no exception to the First Amendment for anonymous speech, or speech on the web (a point also made by the civil-liberties group FIRE at this link). And although the courts have let the government get away with regulating speech a lot in the workplace (frankly, too much), they have rejected a “harassment” or “civil-rights” exception to the First Amendment for speech outside the workplace, leading to successful lawsuits against civil-rights bureaucrats for trying to restrict speech, both in a 1978 case involving the Office for Civil Rights, and a 2000 decision involving a successful lawsuit against individual civil-rights officials in the Department of Housing and Urban Development.