University policies seem to be a popular topic in this blog,
so here’s another one to discuss regarding next week’s topic of prior restraint.
On September 19, 2017, the Eastern District Court of Virginia denied the
Feminist Majority Foundation’s request to make the University of Mary
Washington block access to Yik Yak on their campus. This case was brought forth
after the Feminist Majority Foundation and its members were targeted by
offensive and violent language through the app Yik Yak during the years of 2014
and 2015. The Yik Yak app was discussed in an earlier post, but for those who
might not remember here’s a brief description: “Yik Yak was a social media
smartphone application that was launched in 2013…it allowed people to create
and view discussion threads within a 5-mile (8 km) radius…it was intended for
sharing primarily with those in proximity to the user.” (Wikipedia). As was the
case with the previous post, Yik Yak was used to create threads that insulted
and degraded a specific target. In this instance, the targets were members of
the Feminist Majority Foundation.
One of
the most significant incidents of this hate speech occurred “At a party that
included some members of the men’s rugby team, [when] a student filmed
partygoers performing a derogatory chant that advocated for violence against
women, including rape, murder, and necrophilia.” (Volokh). When the University
of Mary Washington received a copy of the video, the administration did not
take any action at first, but Feminists United continued to ask what the
university was going to do. In response, the University of Mary Washington punished
the rugby team by indefinitely suspending their extracurricular activities and
furthermore requiring all the team’s members to participate in sexual assault
training (Volokh). The insulting posts continued to surface though, so
Feminists United requested the university to ban the Yik Yak app from their
wireless network.
The
continued hate speech, and the inaction of the university, eventually led the
group to take the issue to court under the claim that the University of Mary
Washington failed to uphold Title IX, which makes it illegal for an institution
to retaliate against those who report sexual discrimination. The court
dismissed the claim though, stating that, “…Title IX does not require funding
recipients to meet the particular remedial demands of its students. This holds
true especially where some of the actions requested—such as banning Yik Yak
from the campus wireless network—may have exposed the university to liability
under the First Amendment.” (Volokh). The author of this article, Eugene
Volokh, states that he believes that the courts reached the right decision, and
that if the University of Mary Washington was expected to implement a ban
against Yik Yak, it would have been a case of prior restraint and a violation
of the First Amendment.
Our
textbook defines prior restraint as “…stopping a message before it is
communicated.” (Tedford and Herbeck 244). In the next section, Tedford and
Herbeck reference Near v. Minnesota
and the ruling of Chief Justice Hughes, who states that prior restraint is only
legal in a few limited cases, such as matters of national security, protecting
the public from obscenity, and preserving the peace of the community (245). If
Feminists United had made a claim that prior restraint was valid based on one
of the three criteria above, I believe that they would have had an argument
under the provision of preserving the peace. As many of us probably know, a lot
of insulting speech online is a form of political hyperbole, which means that
the writer has no intention of fulfilling any actions they claim that they will
make. Under other circumstances I would agree these threads on Yik Yak were
political hyperbole, albeit unpleasant and worthless in civil conversation.
However, the article I cite above mentions that police protection was provided
to some of the threatened students. In my opinion, by giving some of the students
police escorts, the university is inadvertently admitting that there is a
chance that one, or more, of the online threats could potentially manifest into
physical violence and hence a breach of the peace.
It is
this line of logic that leads me to believe that there is ample reason to
consider the use of prior restraint in this situation. Although banning an app
such as Yik Yak might well become pointless in the long term if those who post
the hate speech move the thread unto another social media platform, I still
believe that it is worth a shot to experiment with. At the very least, it can
help us determine how willing those who post hate speech are to change
platforms. If it turns out that many of them are willing to jump from platform
to platform just to continue to spread their malicious statements, then I think
that it is time for the U.S. to acknowledge that online hate speech is a
serious issue that needs to be addressed and resolved quickly. What do you
think?
Sources
Tedford, Thomas L., and Dale A. Herbeck. Freedom of Speech in the Unites States.
8th ed. Strata Publishing, INC., 2017.
Volokh, Eugene. “Court rejects Feminist Majority
Foundation’s demand that public university block access to Yik Yak.” The Washington Post, 21 Sept. 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/21/court-rejects-feminist-majority-foundations-demand-that-public-university-block-access-to-yik-yak/?utm_term=.a66442496de3
Accessed 19 Oct. 2017.
“Yik Yak.” Wikipedia,
18 Oct. 2017, https://en.wikipedia.org/wiki/Yik_Yak
Accessed 19 Oct. 2017.
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