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Sticks and Stones May Break My Bones, But Hate Speech Is Constitutional
Yik Yak, a controversial social media app, has colleges embroiled in debate as to the proper extents of speech on campuses. Yik Yak is a program that gives the user a “a live feed of what everyone’s saying around you.” On campuses around the country this can lead to predictable results when you combine adolescents, newly freed from the control of their parents, with the ability to spontaneously broadcast whatever they happen to be feeling in that moment within a 10-mile radius.
As noted by one writer at LSU, the results can often be what is popularly considered “hate speech.” Noting some of the truly terrible things that her fellow students feel free to share through the app, she writes:
This app shows there are students on this campus who still equate black people with monkeys. There are people here who believe murder is justifiable if a transgender person doesn’t reveal their biological sex before entering into a relationship. These people gleefully passed around links to a sex tape that involved an LSU student, calling her a whore while doing so.
This student then issued an opinion that while “[f]ree speech is constitutionally protected[,] [h]ate speech is not.” This is flatly untrue (for instance, R.A.V. v. St. Paul), but she does raise an interesting question. While colleges are not free to stop politically or personally offensive expressions of their students, are they free to prevent students from importing into campus new platforms from which students may speak?
The Huffington Post ran an opinion piece on the same issue a few months ago. The author, citing similar instances on various campuses, hangs his argument’s hat on the fact that Yik Yak allows for anonymous speech. In that author’s opion:
[C]ollege administrations should permanently ban Yik Yak and any other forums that allows people to post comments anonymously.
He then at least has the forthrightness to call his proposal what it is: censorship. He writes:
It sounds a lot like censorship, which is quite the dirty word these days. But make no mistake – censorship is exactly what I’m advocating.
There are two issues here: first, can or should a campus ban a technological tool because it can facilitate offensive, hateful, or even extremely hurtful speech, and second, does the anonymous nature of the communication somehow change the calculus of the typical free speech argument?
In the case of Yik Yak, there will certainly be many instances where the students would be using LSU’s own network for downloading and using the app. A first impulse may be to say that a school has the right to restrict outside content on their own networks. However, I suspect a viable argument could be made that the campus network constitutes some kind of limited public forum.
Under this theory, the campus couldn’t discriminate against content or viewpoint directly – thus any kind of ban would have to be toward a whole class of speakers, regardless of content. I’m not certain exactly how this would look in practice, but I imagine it would be something like a ban social media apps in general, and not just ones that are offensive, or could be offensive.
The LSU student also advocates that LSU ask Yik Yak directly to turn off access to the students of its schools. Nothing immediately springs to mind as to why this would be per se unconstitutional, but it certainly strikes me as highly paternalistic with regards to the students – people who we assume are being groomed for adulthood. While this might not be unconstitutional, it certainly feels wrong, and like a policy that can lead to increasingly more restrictive speech environments on campus.
Does the anonymous nature of the communication change how we think about the speech issues? 4Chan is a well-known example of anonymous speakers who can and do say truly horrible things. Comment sections in general are frequently terrible, terrible places. There are obvious solutions to this from the content provider’s perspective – i.e. the Ricochet model of requiring users to pay. However, should a college campus regard the wide-open and anonymous speech in comments and social media apps as something that justifies restricting speech? No.
The recent limitations that we see in cases like Yelp v. Hadeed Carpet Cleaning notwithstanding, the Supreme Court has consistently held that there is a right to anonymity when speaking. For instance, in McIntyre v. Ohio Elections Comm., the Court held:
‘Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.’ Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.
In 1960, I am sure the Court had no idea that Yik Yak was coming, but the law is able to handle novel cases. While I personally doubt that a great writer will take to Yik Yak to compose his next masterpiece, that is irrelevant. The fact is, anonymous speech is protected. Importantly, such speech should be protected, because we have no idea who will use what new device or platform to create the next set of socially beneficial expressions. Just because we extremely disagree with the hateful or offensive comments – comments which might have zero intellectual value themselves – does not in any way recommend a policy of censorship.
The contours of how we deal with speech through social media and as-yet unknown future technologies are not fully described in law or society. My inclination will, perhaps predictably, be for greater freedom in these contexts. While Yik Yak may be used for extremely offensive expression, it still remains that the only people who receive that information are voluntary users of the service. Further, bodies of law already exist to handle actual harms – situations when any of the language on the platform crosses into defamatory or threatening territory.
While the speech may be unpleasant, hurtful, or even hateful, I would be disappointed if colleges enacted bans on Yik Yak and other such platforms. To get at the best set of ideas we need to unfortunately allow room for the truly terrible ones as well.
Published in General
I am inclined to wonder if anonymous speech is so “hateful/hurtful/etc…” because we are so policed in what we say literally everywhere else. On top of that, the codes are somewhat arbitrary (N-word being a prime example, I think). The problem is that this level of social censorship does not actually eliminate ideas; I wonder if it actually just causes them to be exaggerated when they’re finally vented. I don’t think the underlying ideas are even necessarily bad. People gravitate toward people like them, and while most people are actually quite tolerant, most people also use stereotypes/jokes/etc… and do so fairly innocently. But we expand sensitivity and (I’ll call it narcissism) so that everyone is suddenly responsible for the hurt feelings of everyone else around them, and when people have an anonymous outlet, they end up just letting it fly. Of course, the things you say anonymously are almost always exaggerated or deliberately inflammatory. We would be far more careful (and try to be far more accurate) in our speech if we were talking to actual people – but when we feel like we’ll be attacked for everything we say, it may be easier to interact with some anonymous speech-app instead.
I propose this axiom: A college can ban a piece of communications technology if the use of that technology is potentially harmful regardless of the content or the message being communicated.
For example, a college can ban the use of bullhorns because the loud volume of the sound is disruptive, regardless of the value of the words being transmitted. A high-value message transmitted at high volume at 4am is just as harmful as a hateful message.
A college cannot ban Yik Yak because it is only potentially harmful if the messages being communicated are harmful. A high-value message transmitted via Yik Yak does not cause harm in the same way that a high-value message transmitted by bullhorn can.
Anonymous speech is not inherently hateful. If it was, then it would be justifiable to ban the anonymous transmission of complimentary speech.
Of course, many radicals are fully in favour of banning anonymous complimentary speech. These are the same people who consider notes from a secret admirer to constitute “harassment”.
If Yik Yak is a phone ap the schools are powerless. They can’t incept traffic on a cellular data stream.
The censorship crowd are always the first to start yelling “There ought to be a law!” before they’ve thought things through.
This is true – but practical considerations aside, should it even be something that a school should be allowed to do ? Hypothetically, if they found a way to interfere with cellular traffic to prevent access to the service, should they be allowed to do it ?
Kristian,
I’m not a lawyer but I know universities around the country routinely block sites with questionable content. It’s their network so excluding sites with malicious code, pornography and illegal audio and video files is their prerogative.
They can’t interfere with cellular data so the question is moot.
The problem here is not a constitutional one, it’s a cultural one. How do you convince people to suppress totalitarian urges? They don’t engage in intellectually honest debate. The use the terms “rights” and “freedom” in the context of power acquisition, just as all totalitarian regimes have done.
I would argue that blocking content from coming in is qualitatively different than blocking the abilities for people to speak. But you are correct, i think its a complicated issue. A university can block offensive content that occurs on the outside from entering, as the right to speak is not synonymous with the right to be heard. However, interfering with the students’ rights to speak by interfering with the platforms on which they can speak would raise constitutional concerns, in my opinion.
The issue of suppressing totalitarian urges is very real too. It’s hard for me to understand the position, personally, as I am bit of a free speech voluptuary. However, the best I can come up with is that its not so much an urge to be totalitarian, as it is an urge to CYA. An administrator is faced with something that could lead to a media bomb going off on campus and instead of deciding to weather the possible storm, makes a decision that he or she thinks will help them keep their job. Its a similar problem as is found in the criticism of regulatory agencies like the FDA – its easier to say no to allowing a potentially life-saving drug than it is to say yes. If you say no the potential lost life to not having a cure early goes unnoticed, but if you say yes and there are side effects, its terribly apparent.
KS – well done. I started with the position that anonymous speech should not enjoy the same protection, but you have convinced me otherwise.
Paul, thanks so much for saying so.
If it was a private school or company, they could do what they wanted to in terms of network access. A company, by definition, cannot censor something.
You can say what you like, but I don’t have to give you a stage.
But LSU gets money from the Federal Government. So I’m not sure about the results there.
No, that isn’t exactly what I meant. I am saying that we are more likely to be hateful if we are anonymous. That much is obvious in that a natural check on nastiness is the personal reaction of the folks who hear us talk. But that was only part of my observation. I do wonder if we were less politically correct if we might be less inclined to ramp up our rhetoric when there isn’t a face or name associated with it.
well, and a university is not the same as a public forum… Even so, blocking the medium is not content-specific, so it would probably be perfectly legal from a constitutional standpoint. That doesn’t make it good.
Yik Yak is extremely popular at my school; I don’t know anyone who doesn’t have the app on his or her phone or who doesn’t check the app every hour or so (I’m guilty of this). Funnily enough, I was introduced to the app by notices posted around campus warning us that although the app was anonymous, the police could track the phone if someone was making threats or harassing someone else on the app.
It’s innocent enough. Racist or otherwise insulting messages are usually downvoted by others until they disappear. We have our share of “The South Will Rise Again” messages that get popular, but I suspect this is due to regional pride rather than a pining for the trans-Atlantic slave trade.
Funny story just recently: there was a message on the app comparing the absence of gay marriage in certain states to the treatment of homosexuals in Iran. Never one to resist an argument, I replied something to the effect of “Nobody in the United States wants to kill all the gay people here,” to which I was prompted a warning that said “We noticed that this reply may have some negative speech! Are you sure you’d like to continue? The police can see what you say.” Something about the juxtaposition of kill and gay people, of course, but it’s sure nice to know that an app used primarily for bashing to the rival school downstate is being patrolled regularly by the boys in blue.
You’re in college? Dagnambit. Now I have to re-assess my default position that all college students today are knuckleheads.
Also, I think trying to “ban” the app will give it a rebel flavor, which will only serve to make it even more attractive to young’uns, and up conscientiousness on free speech.