A new call for the federal government to crack down on a social media
app popular with college students, but sometimes used to spread hate,
is a study in how to violate the First Amendment, according to one legal
expert.
A coalition of advocacy groups penned a letter Oct. 20 to the U.S.
Department of Education Office for Civil Rights demanding more
monitoring and regulation of the popular free app, Yik Yak, by college
administrators -- claiming the app is being used for sexual and
race-based online harassment and intimidation that is prohibited on
college campuses by Title IX.
Yik Yak, which launched in 2013 and is popular on about 1,600 college
campuses, allows smartphone users to anonymously create and view "Yaks"
within a 1.5-mile radius. The intimacy of the network allows for
students in close proximity to comment on shared experiences, like a
particular college course or sporting event, and write messages of
support or jokes or anything related to the topic under discussion.
"The speech to which this letter objects includes a great deal of speech protected under the First Amendment."
- Eugene Volokh, law professor
"Share your thoughts and keep your privacy on Yik Yak," the app,
named after the '50s song, "Yakety Yak," promises on its website.
But the anonymity of Yik Yak has also created a forum for hateful,
sexist and racist comments. In some instances, the speech has crossed
the line to actual threats -- like those reported within the past year
at the University of Mary Washington, where female students were
threatened with rape and murder via the social media app. The groups'
letter cites hate-filled comments, such as, "Jesus I hate black people,"
as well as sexually explicit speech.
In its effort to censor Yik Yak on college campuses, the coalition --
which includes the Feminist Majority Foundation and the National
Organization for Women as well as the Human Rights Campaign and the
National LGBTQ Task Force -- cites a 1969 Supreme Court case applicable
to kindergarten through 12th grade students. In
Tinker v. Des Moines Independent Community School District, the
high court ruled that certain speech in schools could be restricted if
deemed disruptive -- though that Supreme Court ruling does not apply at
colleges and universities.
Eugene Volokh, a professor at UCLA School of Law, roundly criticized
the letter Tuesday, saying any crackdown on Yik Yak -- now the
ninth-most popular social media app -- is blatantly unconstitutional.
"The speech to which this letter objects includes a great deal of
speech protected under the First Amendment," Volokh told FoxNews.com.
"The Supreme Court has repeatedly said that at the college and
university level, this kind of speech is constitutionally protected," he
said. "The breadth of the restriction just shows how little concern
this coalition has for free speech rights."
Even racist and sexist comments are typically protected under the
Constitution, said Volokh, who called the movement to chill free speech
on campus "the great firewall of American higher education" in a
Washington Post op-ed.
The coalition claims its purpose is to call for federal guidelines on
how schools can deal with the harassment and discriminatory comments
they say are pervasive on Yik Yak -- and not to bar the app. But Volokh
said the letter makes suggestions that, if approved, would effectively
ban the use of it on college campuses.
"As the perpetrators of harassment and intimidation on applications
like Yik Yak are anonymous, OCR should also clarify the steps an
academic institution can take to satisfy its civil rights obligations,"
the letter states. "OCR should reiterate that 'if harassment has
occurred, doing nothing is always the wrong response,' and also provide
concrete examples of what kinds of actions might be appropriate."
The letter goes on to state that examples of such actions could
include "initiating campus disciplinary proceedings against individuals
engaging in online harassment" or "barring the use of campus wi-fi to
view or post to these applications."
The Oct. 20 letter by the coalition of advocacy groups is not the
first time serious concerns have been raised about Yik Yak. The app has a
"geo-fence" feature that disables its use around high schools and
middle schools in response to bullying. In May, the student senate at
College of Idaho voted to ban Yik Yak from campus after seven students
reported feeling personally threatened by posts on the app.
"If someone puts a racist epithet on a Latino's door, or a black
person's door, there's at least a potential evidence thread that can be
investigated," college president Marv Henberg
told the Idaho Statesman last May. "Not with Yik Yak."
On Sunday, a threat made via Yik Yak put administrators on high alert
at the Des Moines Area Community College's Ankeny Campus. A person on
the app asked for places in the area to go deer hunting, when another
user suggested looking at the Ankeny DMACC Campus, a school official
told the Des Moines Register. An e-mail was sent out Monday notifying
students about the threat, which was investigated by the local police
and the Department of Homeland Security.
Volokh said legitimate threats made over Yik Yak are another matter -- and must be investigated like any other.
"True threats of violence are not constitutionally protected and they
should be punished," he said. "If there are these threats, you actually
want them to be out there visible."
But, Volokh said, the threats and hateful speech made by some does
not give the government or schools license to shut down the speech of
all.
"Universities are places where people go in order to be exposed to a
wide range of ideas and university students are expected to deal with
speech that is offensive," added Volokh. "To say you can't access these
materials [Yik Yak] from the university is to pretend there isn’t this
big world outside the university where people will be able to post and
read the same things."
