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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