by: Mickey Ingles

Social media is all the rage these days. You’re probably here because you clicked on a link that popped up in either your Facebook or Twitter feed. And in case you’ve been living under a rock like a creepy critter, you’d know the dangers of indiscriminate posting online. It can cost you your job. And it can also make you lose some friends IRL (yaaaas to millennial speak!).

The same dangers—if not, greater risks—beset student-athletes. It’s all nice and pretty when they post nice and pretty things about their school and their fans. But that’s not always the case, is it?  Because of the possible adverse effects on both the student-athlete and the school, schools may want to start thinking about drafting social media policies (SMP) for their student-athletes.

Well, if you didn’t interrupt me, Meryl, then I would’ve been able to say that this post actually outlines rules and guidelines in order for a school not to step on the Consti-toesies of student-athletes.

But first, let’s get a basic precept out of the way. (If you read our previous post on cursing referees! You can skip this paragraph.) The right to free speech, a Constitutional right recognized by our 1987 Philippine Constitution, is generally directed at a state actor, like the government or a state school (like UP). That’s how the Bill of Rights works. Strictly speaking, it shouldn’t be used against private parties like private schools (like San Beda or Ateneo). That’s the role of Article 32 of the Civil Code. However, this has been muddled because of a number of cases where the Supreme Court applied free speech doctrines to the private institutions. So, just to play it safe (and keep this post simple), schools, whether private or public, must respect a student-athlete’s right to say what he or she wants on social media—

 Again, if you didn’t interrupt me, Fergie, I would’ve been able to say that a student-athlete’s social media use may be validly regulated. American and Philippine jurisprudence have laid down certain guidelines in determining whether restrictions on student free speech are valid or not. These apply to student-athletes as well.

First, a school can only restrict (or discipline) student-athletes’ speech if the speech was made on-campus. Hence, the SMP must only cover on-campus speech.

Why does it matter if the speech was made on-campus or not?

It matters because American and Philippines courts have recognized the special role of schools in shaping the youth. Because of this “special role” in society, courts have given leeway to schools to regulate certain constitutional rights, such as free speech. Outside the school setting, the schools lose—at least to a certain degree—this power to regulate, because the student-athlete’s right to free speech receives the same blanket protection as any other citizen’s.

Simply put, on-campus speech can be regulated more than off-campus speech. That’s why it matters.

So, when is speech considered on-campus?

American and Philippine cases have given us the following instances:

1. When the speech is made during a school-sanctioned event;[1]
2. When, regardless of its geographic origin, it causes (or foreseeably causes) substantial disruption of school activities;[2] and
3. When, even if it was made off-campus, there’s sufficient nexus (a fancy-schmancy legal word for “connection”) between the social media post and the school. [3]

Hence, a SMP may prohibit student-athletes from broadcasting a Facebook live video from the locker room during a UAAP game (as the game is a school-sanctioned event). The difficulty lies in the second and third instances. Careful drafting of a SMP should take these fact-heavy guidelines into consideration.

Now that we know which speech is on-campus, what kinds of speech can be regulated?

Thankfully, cases have also outlined instances where student speech may be regulated or disciplined. Hence, social media policies drafted around these limits are safe and do not infringe on a student-athlete’s free speech.

1. Speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others;” (more popularly known as the Tinker test)[4]
2. Vulgar and lewd speech;[5]
3. School-sponsored speech;[6]
4. Speech that promotes illegal drug use;[7
5. Obscene and libelous speech.

The list seems pretty straightforward. Of course, student-athletes shouldn’t post pictures of their junk on InstantChat. And yes, student-athletes shouldn’t brag of their illegal drug use on SnapFace. (LOL to Bill Belichick)

SMPs might run into some complications with the Tinker test—but those complications will deal more with facts and evidence on the disruption of schoolwork, and not really on its inclusion in a SMP.

Can schools add to the list? Like include a provision in a SMP that prohibits student-athletes from tweeting or posting anything online that might reflect badly on the school or bring the school into disrepute?

I don’t see why not. It can also include provisions outlining sanctions for students who post photos of sexual misconduct or racist language.

As long as the policy is reasonable and the student-athlete signs off and agrees to such policy, then it should be binding on the student-athlete. A student-athlete may validly waive his or her rights in a private contract.

Do we really need social media policies for student-athletes?

 Well, that’s a choice that schools have to take. But IMHO (yaaaas to millennial-speak) they should. Legally, it helps satisfy due process requirements and precludes students from raising the argument that they weren’t informed of prohibited conduct.

And more importantly, a well-drafted SMP will also guide student-athletes in their social media use. In the end, no matter how popular or influential a student-athlete is, he or she is still a student. And whether the school likes it or not, proper social media use should be part of its pedagogical concerns.

It should be the mission of each school to teach its student-athletes that what you post online, stays there… forever.

Mickey Ingles is the editor-in-chief of Batas Sportiva. He poops around in Twitter a lot at @mickeyingleslaw. He’s relieved social media wasn’t a thing yet when he was a student-athlete.

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[1] Morse v. Frederick, 551 US 393 (2007).

[2] J.C. v. Beverly Hills, 711 F.Supp. 2d 1094 (9th Cir 2010)

[3] Id.

[4] Tinker v. Des Moines, 393 US 503 (1969).

[5] Bethel School District v. Fraser, 478 US 675 (1986).

[6] Miriam College Foundation v. Court of Appeals, 348 SCRA 265 (2000).

[7] Morse.