The NCAA vs. Free Speech
Since when is it okay for a sports organization to curb university students' rights to publicly express their opinions?
As any college student or sports fan knows, the National Collegiate Athletic Association (NCAA) is one of the most powerful institutions in the world of American higher education. Flush with billions in cash from the television rights to college football games and the NCAA basketball tournament, there are few aspects of college sports that the NCAA does not try to regulate. From rules on numbers of scholarships and required GPAs to rules on recruiting and even on universities’ mascots and nicknames, everyone involved in university athletics is under the NCAA’s thumb.
With the rise of the Internet and social networking, however, the NCAA’s grasp has begun to encompass everyday students who have nothing to do with a school’s athletic program other than being a supporter of their school’s team. As a result, free speech rights are in jeopardy.
A few weeks ago, the Associated Press reported that North Carolina State University had sent a “cease-and-desist” letter to freshman Taylor Moseley for a recruiting violation. His crime? He set up a group on Facebook.com entitled “John Wall PLEASE come to NC STATE!!!!” Wall is currently a highly sought-after basketball recruit. More than 700 people joined the group.
As the AP reported, “the NCAA says such sites, and dozens more like them wooing Wall and other top recruits, violate its rules. More than just cheerleading boards, the NCAA says the sites are an attempt to influence the college choice of a recruit.” Voila. The NCAA’s jurisdiction has just expanded to cover every student at every university who dares venture an opinion about recruiting on the Internet.
In fact, the NCAA appears to be completely comfortable using its regulations to silence people whose only connection with a given university is being a fan of the team. Duke University recently sent a cease-and-desist letter to student Jimmy Mueller, who created a Facebook group encouraging John Wall to attend Duke. Mueller isn’t a Duke student, though. He’s a sophomore at the University of Akron and is merely a fan of the Duke team. Indeed, if Mueller had not been a student at all, but rather an average working person, there’s no reason to suppose Duke wouldn’t have sent the letter anyway.
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Robert Shibley is the vice president of the Foundation for Individual Rights in Education (FIRE) in Philadelphia, PA.
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19 Comments
1. LeighB:The NCAA is busy trolling Facebook instead of watching the activities of well-heeled boosters and would be agents? Fascinating. But not surprising.
May I do something yet in life that earns me a “cease and desist” letter from the NCAA.
May 11, 2009 - 3:26 am 2. Spinoneone:Gee, the fact that Duke’s mascot is the “Blue Devil” ought to outrage Christian fundamentalists. Isn’t that just as bad as “outraging” or “insulting” the Florida Seminoles? How about the “Fighting Sioux?” But I am reminded that a certain high school student lost at the Supreme Court when he claimed the right to hold a sign at a school approved event, off the school grounds. Hummmm…. I most definitely agree with Mr. Shibley, but he may not win the case.
May 11, 2009 - 3:39 am 3. canuck:Time to set up a few of these sites to see if the NCAA thugs try someone who bites back on for size.
This liberal organization thinks it can regulate all aspects of college life and really needs to be taught a very expensive lesson…as in anti-trust legislation. Just like JCAHO where a little competition was entirely instructive, so too would a second option for college athletics be healthy.
May 11, 2009 - 4:00 am 4. jerryofva:The NCAA is a private organization made up of member schools. Just like a country club, it can make its own rules. There is no First Ammendment issue here. The desire to extend the right of free speech beyond protection from government interference actually undermines the First Ammedment by destroying the concept of private space. Sure the rule is pushing a point to the extreme but it is not a First Ammnedment case.
May 11, 2009 - 5:22 am 5. Sassenach:You can post a comment on the NCAA facebook page here: http://www.facebook.com/home.php#/pages/NCAA-Students/13950081604?v=wall&viewas=1424949418
May 11, 2009 - 7:01 am 6. Robert Shibley:jerryofva,
So you have no problem with N.C. State using government resources and the implied threat of government power (when you send a cease and desist letter, there is an implied threat that you will do something to them if the recipient doesn’t desist) to tell one of its students that he may not express his opinion on Facebook, a private website that is not under government control? Remember, the NCAA is not sending these letters, the universities are – and N.C. State is an arm of the state government.
May 11, 2009 - 7:03 am 7. WJ:To #4 jerryofva:
Yes, the NCAA is a private organization, and yes they can make up their own rules. I would counter with one question and one point.
1) Can private organizations have as part of their membership the loss of constitutional rights?
May 11, 2009 - 7:18 am 8. J.R.:2) These students who are setting up the Facebook sites are not members of the NCAA. Yes, the schools these students attend are NCAA members, but that does not mean the responsibilities flow down to the students. And what if I, as a private citizen and not a college student nor an NCAA member, set up a Facebook site? Could the NCAA force me to shut it down?
Someone needs to take this threat to its logical conclusion. As WJ states, what can the NCAA do to a private citizen if they chose to create a site like the ones mentioned in this post? Or for that matter, what authority does Duke University or NC State have over private citizens? This encroachment on free speech needs to be addresses.
May 11, 2009 - 7:28 am 9. Roy Lofquist:What I would do in this situation:
I would file, pro se, an action in Federal court alleging a conspiracy by the NCAA and the schools involved to deny my Constitutional right to free speech. Hit the parties with extensive discovery motions. Just costs me some time and a filing fee. Costs them tens of thousands. Bet they don’t do it again.
May 11, 2009 - 8:19 am 10. len:the ncaa needs to have an external evaluation/assessment of its current policies and procedures….a blue ribbon commission of former athletes/college professors/college administrators…..uva65
May 11, 2009 - 9:55 am 11. jerryofva:WJ:
A private organization sets its own rules so if you don’t like them quit the organization. You don’t have any constitutiional rights at your local country club.
Robert:
NC State is a member of a private association call the National Collegiate Athletic Association. They are bound by its rules. If they don’t like that then they can quit or they can challenge them in a civil action like Florida State did over using Seminole imagery. In the meantime the NCAA can enforce its rules.
May 11, 2009 - 11:22 am 12. Robert Shibley:jerryofva,
The NCAA is not the one enforcing its rules against the student here. N.C. State is doing the enforcing. To use an analogy to illustrate the situation, your scheme suggests that if N.C. State joined a hypothetical “American Anti-Socialist Alliance,” and the alliance’s rules required that N.C. State not admit socialists (which, like silencing protected speech, would be unconstitutional), N.C. State could either 1. quit and/or sue the alliance or 2. go ahead and reject socialists because “the alliance can enforce its rules.”
Obviously, as a government agency, N.C. State is free to do neither. Government agencies cannot do unconstitutional things just because private organizations are pressuring them to do so. That would grant private organizations the coercive power of the state to enforce their preferences, and that is a very unwise idea.
May 11, 2009 - 11:56 am 13. BobM:While it is more than a little bit silly for the NCAA to act in this manner, it isn’t a free speech issue. These folks can continue to post whatever they want without the interference of government officals, it’s just that the University can be punished by the NCAA of which they are voluntarily a member. By being a member they agree to abide by the rules by this organization, no matter how ridiculous the rule may be.
May 11, 2009 - 2:37 pm 14. Tom Holsinger:Roy,
Actually there could be a RICO suit (18 United States Code 1861, et. seq.), with the predicate act being extortion under 18 U.S.C. 1951. College students have contracts with their schools which consitute property interests, and are therefore property which can be extorted. It would be more of stretch to argue that the students are being injured in their trade or business, but civil RICO is liberally construed in that regard.
Plus the schools in question, not merely the NCAA, would be civilly liable for violating their students’ federal civil rights – 42 U.S.C. 1983, et seq. Private organizations and persons can be sued for some federal civil rights violations, thouogh it might be a stretch to seek relief concerning non-minorities/women for suppression of free speech.
The NCAA could be sued even for attempts, though the objective of such a suit would be injunctive relief, and that is available only under 42 U.S.C. 1983, not 18 U.S.C. 1961 where only the Department of Justice can seek RICO injunctive relief.
A federal civil rights class action seeking injunctive relief would probably be the best way to go after the NCAA for this sort of tin-pot tyranny.
Though we can dream about simply lifting the NCAA’s anti-trust immunity.
May 11, 2009 - 3:47 pm 15. materialist:Not being an attorney, I am nonetheless sure that BobM is right. There is nothing Duke or the NCAA can legally do to the non-Duke student involved here. However, if he fails to desist the NCAA can sanction Duke for having such recalcitrant friends. Does Duke have legal recourse then? I’m not sure.
The NC State case is more troublesome. Can they discipline or expel their student if he fails to desist? I doubt that they legally can, but the issue is murky. The employees of an institution can, at least sometimes, be required to honor restrictive agreements the institution has made. Can the students of an institution be required to honor its external commitments?
May 11, 2009 - 3:53 pm 16. Fantom:Well, The Boz said it best…”On more than one occasion Bosworth referred to the NCAA as the “National Communists Against Athletes”
And with the commie B.O as TOTUS. .. Ehh.
May 11, 2009 - 3:58 pm 17. Tom Holsinger:materialist,
You asked, “The employees of an institution can, at least sometimes, be required to honor restrictive agreements the institution has made. Can the students of an institution be required to honor its external commitments??”
That depends on what the admission & enrollment contracts of the schools involved say, and public ones cannot require waiver of federal civil rights as a condition of enrollment. Private ones can, which is why religious-affiliated colleges exist – it’s why they can show preference for students of their faith/denomination, or even restrict enrollment to their own faith.
I doubt, though, that any private school requires that students waive their federal free speech rights concerning the NCAA.
May 11, 2009 - 4:11 pm 18. twolaneflash:Yes, you can join an organization and sign away your Constitutional rights. People do it every time they move into a community with a homeowner’s association. Limited liberties is true in most contractual agreements. For groups like the NCAA, power corrupts; absolute power corrupts absolutely. The arrogance of those in power is beyond belief.
May 12, 2009 - 6:42 am 19. Frossca:So, if I were a NC alum out to make a little mischief against the Dukies (and what self-respecting NC alum would not) I could set up a such a site trying to lure the prospect to Duke, tell Duke and/or the NCAA to pound sand with their C&D and gleefully watch as the Blue Devils lose scholarships and money. Cool.
(Of course, there is always the risk that the super-prospect might actually choose Duke.)
May 13, 2009 - 12:25 pm