[Eugene Volokh] Court rejects Feminist Majority Foundation’s demand that public university block access to Yik Yak

That’s what happened Tuesday, in Feminist Majority Foundation v. Univ. of Mary Washington (E.D. Va.). In 2014-2015, several members of Feminists United — a University of Mary Washington club affiliated with the Feminist Majority Foundation —

spoke out about different campus happenings that implicated issues important to their organization, such as sexual assault and violence against women. [Footnote: One such happening involved the men’s rugby team. At a party that included some members of the men’s rugby team, a student filmed partygoers performing a derogatory chant that advocated for violence against women, including rape, murder, and necrophilia. The student provided a copy of the recording to UMW, and told a member of Feminists United about the chant. One member of Feminists United mentioned the chant in a newspaper opinion piece about why UMW was not a “feminist friendly campus.” After hearing nothing about the team’s punishment, Feminists United continuously followed up with the administration on what action UMW planned to take against the rugby team. Eventually, UMW punished the team by suspending men’s rugby activities indefinitely, and by requiring all members to participate in sexual assault training. The plaintiffs disagree with how UMW handled the situation.]

In response, some people who used the Yik Yak social media application “began posting insulting and derogatory yaks about Feminists United and its individual members,” such as “these feminists need to chill their t––s” and “I f–––––– hate feminists and sour vaginas.” After Feminists United reported this to the university administration, the posting escalated, with some of the Yik Yak posts “includ[ing] threats of physical and sexual violence,” as well as general insults (political or otherwise), and “some mention[ing] members of Feminists United by name” or “include[ing] a member’s location on campus so that people could confront her in person.” In response, “UMW organized some ‘sharing circles’ to discuss Yik Yak at UMW,” and also provided police protection to some of the threatened students. But Feminists United asked that the university also “disable Yik Yak on campus and ban Yik Yak from UMW’s wireless network,” something the university rejected “because of First Amendment concerns.”

Feminists United, its members and the Feminist Majority Foundation “filed an administrative complaint with the Department of Education’s Office of Civil Rights … alleging that UMW violated Title IX ‘by failing to adequately address the sexually hostile environment created by persistent online harassment and threats.’” They held a news conference and then the university in turn issued a public statement:

On June 8, 2015, President Hurley sent a letter to the FMF …, responding to some of the allegations in the OCR complaint. Hurley published this letter with various news outlets. In the letter, Hurley detailed UMW’s actions in response to Feminists United’s concerns and explained the First Amendment concerns involved with banning Yik Yak. He commented that some of the yaks “were certainly offensive and alarming in isolation, but must be placed in context.” Anonymous Yik Yak users continued to post hostile and harassing comments about Feminists United and its members after the publication the June 8 Letter and throughout the summer of 2015.

The court didn’t discuss whether some of the posters could be prosecuted for their speech, or expelled or suspended if they were students (though I expect that they could be, if the speech contained true threats of violence against particular people, and if they could be identified). But it held that the university’s refusal to try to block Yik Yak didn’t violate Title IX’s ban on sex discrimination:

[T]he Title IX discrimination claim fails because the harassment took place in a context over which UMW had limited, if any, control — anonymous postings on Yik Yak. [Footnote: Further, because users post anonymously, UMW may not have had control over the harassers …] Nevertheless, UMW attempted to take some action, such as holding sharing circles to discuss the issue of cyberbullying} Further, when a yak targeted a member of Feminists United specifically and made her feel unsafe attending meetings on campus, a UMW police officer attended the meetings.

While UMW did not take the specific action requested by the plaintiffs, 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.

The court also rejected the argument that the June 8 letter constituted forbidden retaliation:

To state a claim for Title IX retaliation, the plaintiff must prove that a funding recipient retaliated against her because she complained about sex-based discrimination. Examples of forms of retaliation recognized by courts include adverse employment actions where the plaintiff worked for the funding recipient, and adverse educational actions, such as expulsion. The Supreme Court has recognized retaliation as a form of discrimination in part because retaliation “is easily attributable to the funding recipient,” distinguishing retaliation from cases based on the recipient’s deliberate indifference to reports of harassment by third parties.

Here, the only action that UMW took after the plaintiffs filed their OCR complaint was President Hurley publishing the June 8 Letter. Through the June 8 Letter, however, UMW, through Hurley, took no action against the plaintiffs. Hurley simply responded to the OCR complaint. This does not rise to the level of a retaliatory action.

And the court rejected the claim that UMW’s action (or inaction) violated the equal protection clause: There was no allegation that UMW was acting out of discriminatory animus, and any sexual harassment claims under the equal protection clause failed for the same reasons as the Title IX claims.

* * *

I think this is quite right, and I think that a contrary result — holding UMW liable for failing to block Yik Yak — would have violated the First Amendment.

I do think that the threats on Yik Yak are classic examples of thuggery aimed at suppressing speech (here, the Feminist United students’ speech); and the nonsubstantive personal insults, while themselves constitutionally protected, should be condemned — both because they are rude and empty, and because they tend to deter people from participating in debates. If people, left, right and center, know that speaking out will yield a massive campaign of insults, many might be deterred from speaking, whether those insults are just personal slurs, or substance-free and hyperbolic charges of “feminazi” or “fascist.”

Nonetheless, a public university can’t block otherwise available student access to an entire privately operated communication platform, just because a few students are using that platform in ways that are rude, harmful to public debate, or even outright criminal. Such a block is a classic prior restraint — here, an attempt to categorically block all use of a communications mechanism in order to prevent some users’ misuse — and that’s true for forums opened on government property (such as government-run wireless networks) and not just for speech on private property. In the words of one such government property case, Southeastern Promotions, Ltd. v. Conrad (1975),

Behind the [prior restraint doctrine] is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.

And certainly Title IX shouldn’t be read as requiring or even pressuring universities, public or private, to institute such prior restraints.