Dangerous Court Ruling Says Colleges May Be Required To Block Access To Certain Websites

from the free-speech? dept

Over the past few years, there have been a number of debates and legal fights concerning questions around Title IX and due process. Title IX of the Education Amendments Act of 1972 is supposed to protect people in educational settings from sex discrimination. It has been interpreted in some questionable ways, lately, with regards to the due process of anyone accused. But, now it's also impacting some other areas as well. The folks at FIRE highlight a fairly horrific appeals court ruling in the 4th Circuit, overturning a lower court ruling (that had dismissed the case), saying that a university might be required to ban access to certain websites under Title IX.

The case was filed against the University of Mary Washington, claiming Title IX violations from some students/student groups. While the court leaves some of the claims dismissed, it reinstates a specific Title IX claim that is quite worrying. As FIRE's Samantha Harris explains first the background of the case:



The lower court dismissed the case, but here the 4th Circuit brings back a large component of it in a very troubling manner. Basically, by saying that since the University provided internet access to sites where harassing content could be found (on the third party app Yik Yak), the University was potentially liable:

The Complaint alleges that much of the harassment occurred through Yik Yak. Although that harassment was communicated through cyberspace, the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak’s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University’s wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students....

Furthermore, to the extent the sexual harassment was communicated through UMW’s wireless network, the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW’s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW’s network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.

Ah, there's that copyright creep situation again. It's annoying when the average clueless joe says something along the lines of "well, if you can kick people offline for copyright, why not x..." but having a Federal Appeals Court Judge say it is really frustrating.

But think about what the court is saying here. Because this happened via the university's network (even on an app totally unrelated and out of the control of the university), the university can still be blamed for not blocking it. That's... crazy. That means that a university would need to proactively police the entire internet to stop anyone from saying anything harassing -- and if they come across anything or are told of anything, they'd be required to block access to that site or app entirely for all students. How is that reasonable?

The court also rejects the fact that the university had no way of figuring out who posted the "offending Yaks." Yik Yak (which went out of business last year) was always entirely anonymous. But the court doesn't seem to care:

To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW’s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers.

The dissenting opinion in the ruling clearly sees the problematic impact of all of this:


The case is far from over (and FIRE also notes that there's a separate issue of whether or not the content was even harassing in the first place, that hasn't even been considered yet). But the implications here are huge and really damaging.

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–The Techdirt Team

Filed Under: 4th circuit, blocking, censorship, harassment, title ix, websites
Companies: university of mary washington, yik yak

Reader Comments

The First Word

justice or Social Justice

Does the Feminist Majority Foundation claim that they represent a majority of feminists or that feminists are a majority of the population? Is either provable or is it like Reagan's silent majority? A wish.

The claim that UMW could have controlled speech, and controlled Yik Yak because they didn't try to control speech seems specious at best. If they had tried and found they couldn't, would they also be liable? They might be able to control their networks, but a platform not owned or controlled by them? Maybe they could have banned Yik Yak, but can they ban all social media, and get away with it?

Controlling networks, not platforms, for speech related issues seems like a gigantic slippery slope. If they control for one group then an opposing group might sue. If they control for the second group then the first group might sue. If they get into the business of controlling speech they are just setting themselves up to be sued and any reasonable entity would decide that getting sued is an appropriate reason to not take some action, especially when that activity is constitutionally protected.

In a separate but related issue, it now appears that there is a push for claiming that 'staring at someone is akin to rape'. There needs to be some backlash at the SJW's for their insistance that their justice is more just than others justice, even if constitutionally protected activities like due process are denied.

—Anonymous Anonymous Coward

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  1. identicon
    Anonymous Coward, 26 Dec 2018 @ 2:20pm

    Re: justice or Social Justice


    Despite how your linked blog post portrays it, the NSVRC paper says nothing of the sort, and in fact a large portion of it is dedicated to moving away from the umbrella term of "rape" in many contexts and being more specific in the way we discuss and catalogue various incidents. It explicitly calls for leering/staring to be treated as its own distinct category, and also sometimes considered as a subcategory of "non-contact sexual misconduct", and to be considered separately from physical violations. One could debate their more general use of "sexual violence" as an umbrella term under which all these things fall, but since the entirety of the report is a call for more specificity not less and quickly abandons all umbrella terms in favour of looking at things in detail, and also makes no assertions that "sexual violence" as a general umbrella term should itself be used in law or policy without more granular definitions within, it doesn't seem particularly worthwhile to harp on that.

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