College Athletes and the First Amendment

Mary Margaret Penrose pic

 

Mary Margaret Penrose pic
Mary Margaret Penrose

Texas A&M School of Law professor Mary Margaret “Meg” Penrose is an accomplished lawyer who was recently awarded Professor of the Year, a title she also gained in 2002 and 2003 while she was teaching at the University of Oklahoma College of Law. With a focus on civil rights and constitutional law, Mary Margaret Penrose has written several publications on the First Amendment rights of college students communicating on social media, including the 2013 paper, “Outspoken: Social Media and the Modern College Athlete” in the John Marshall Review of Intellectual Property.

The US Constitution’s First Amendment, which protects against governmental interference with free speech and expression, is often misunderstood and is not unlimited. The First Amendment only protects against state or governmental action. It does not limit private entities, businesses or schools from prohibiting speech and expression. Public colleges and universities, the article argues, are within their legal rights to place some limitations on the social media usage of their athletes. The article provides legal analysis but leaves policy decisions, and the wisdom of such decisions, to the schools themselves.

Because participating in college athletics is considered to be a privilege and not a right, schools regularly place limitations on various kinds of behavior for athletes. Athletes may have specific rules around appearance and grooming or limitations on tobacco and alcohol use. It’s common to require athletes to avoid talking to the press except in controlled circumstances. These rules and limitations are helpful for protecting and supporting the athlete, maintaining team unity and upholding the school’s values and traditions.

Social media is a new and challenging form of communication. A single tweet can cast a negative light on the athletes, their peers, their team and the schools involved. The article argues that schools are within their First Amendment rights to limit — but not ban — the speech of college and university athletes as an aspect of the normal course of regulating and protecting this special group of people who are generally seen to represent their schools. Time, place and manner restrictions have a long First Amendment pedigree and should be consulted in evaluating public university athletic department social media policies.

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