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EFF to Court: Requiring Universities to Ban Anonymous Online Speech Platforms on Campus is Counterproductive and Unconstitutional

DEEPLINKS BLOG
January 18, 2018

EFF to Court: Requiring Universities to Ban Anonymous Online Speech Platforms on Campus is Counterproductive and Unconstitutional

Requiring public universities to ban access to anonymous online speech platforms would undermine activism occurring on those campuses and violate the First Amendment, EFF argued in a brief filed on Thursday.

Plaintiffs in the case, Feminist Majority Foundation et al. v. University of Mary Washington, claim that university officials violated federal anti-discrimination law by not taking appropriate steps to address threats and harassment directed at students, including messages posted on the now-defunct online platform Yik Yak.

One way university officials could have prevented the harassment, according to plaintiffs, is by blocking access to Yik Yak. After a federal trial court dismissed their claims last year, the plaintiffs appealed to the U.S. Court of Appeals for the Fourth Circuit.

The lawsuit followed a request by one of the plaintiffs in the case for federal rules that would have required universities to ban access to anonymous online platforms to comply with federal law, which EFF also opposed [.pdf].

EFF agrees with the plaintiffs that online threats and harassment are a serious issue and that universities can and should do more to protect students on campus. We filed the brief in the case, however, because solutions to stopping harassment and threats at universities should not include unconstitutional bans on anonymous speech or the online platforms that permit people to speak anonymously.

In the brief [.pdf], EFF argues that plaintiffs’ “well-intentioned efforts to protect college students from harassment and threats will jeopardize their ability to advocate for equality on campuses by prohibiting them and others from using anonymous online speech platforms as a tool for broader social change.”

The brief provides several examples of the benefits anonymity provides to students and others who are advocating for social change, such as allowing students to report racism and sexual violence without fear of reprisal or to avoid surveillance.

“When advocating for equality on the basis of gender, race, and other protected statuses, both on campus and throughout the world, many university students choose to speak anonymously,” the brief argues. “This is especially true when these student activists perceive that their views are controversial with fellow students, university officials, or even local police.”

The brief also shows how beneficial anonymous online speech platforms can be to social movements because they “enrich our public discourse by disseminating important voices that might not otherwise be heard if individuals had to attach their names to them.”

Finally, the brief argues that requiring public universities to restrict anonymous speech or access to anonymous online platforms would violate the First Amendment. “The University thus could not, consistent with the First Amendment, have blocked students from communicating anonymously, whether through Yik Yak or otherwise, in order to fulfill their Title IX requirements,” the brief argues.

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