University of Mary Washington’s decision not to ban anonymous app Yik Yak upheld by federal court

A federal district court in Virginia has ruled in favor of the University of Mary Washington, dismissing a lawsuit over the university’s refusal to block access to Yik Yak, a now-defunct app that allowed users within a narrow geographic area to post and read anonymous messages. Yik Yak was often criticized for caustic or offensive exchanges, including by students at UMW, where some anonymous users posted “Yaks” containing allegedly threatening comments about women on campus. Some students, together with the Feminist Majority Foundation, brought a lawsuit against the university for refusing to block the app and for publishing a letter critical of their position.

My colleague Susan Kruth wrote about the lawsuit in May:

Earlier this month, the Feminist Majority Foundation — along with its University of Mary Washington campus affiliate Feminists United and five former UMW students — filed a lawsuit against the Virginia public university and its president. They alleged that the university’s response to offensive speech by other UMW students was inadequate and perpetuated a hostile environment based on sex in violation of Title IX and the Fourteenth Amendment. [The group filed a similar complaint with the Department of Education’s Office for Civil Rights (OCR) in 2015.]

[T]his lawsuit largely focuses on a surge of posts made to the smartphone app Yik Yak, which — prior to being shut down a few weeks ago — allowed users to post and read anonymous comments in their geographical vicinity. According to Feminists United, there were over 700 comments about group members, “many of which were overtly sexist and/or threatening.” Yet out of these hundreds of messages, most of those quoted in the complaint are plainly not serious threats of violence, but instead derogatory remarks or even invitations for students to engage in debate with members of Feminists United.

[...]

Worryingly, the complaint further alleges that the university unlawfully retaliated against the students when university president Richard Hurley explained in a public statement that First Amendment considerations limited the steps UMW, as a public institution, could take in response to student expression.

Responding to actionable harassment, and providing resources for students who experience conduct which falls below the threshold of actionable harassment, is a legal and moral obligation of a university. But a public institution cannot proscribe whole channels of speech whenever someone uses it in an offensive, or even unlawful, manner. Blocking channels of anonymous speech would be technologically futile at best, a symbolic step that does little (if anything) to address actionable harassment. Even assuming it were effective in preventing actionable harassment, blocking specific websites or fora would not be narrowly tailored to address the underlying issue, and would instead amount to a significant abridgment of the First Amendment.

The court’s opinion, embedded below, defers to the choice of the university in selecting from a variety of potential responses to actionable harassment, and finds that the university is not obliged to follow the complainant’s “particular remedial demand.” The court continues (with footnotes omitted):

In this case, the 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. 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 likewise holds that a public letter sent by UMW’s president addressing the Feminist Majority Foundation’s arguments did not amount to unlawful retaliation:

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.

That’s the right conclusion. The letter defended the university’s actions, criticized the organization’s assertions, and accurately stated that the First Amendment forbids the university from blocking channels of protected speech. If reasoned criticism by a university’s leadership amounted to unlawful retaliation, then universities and their constituents would be unable to respond to incidents of offensive speech by criticizing it. Criticism alone is not censorship, and a finding to the contrary would inhibit the “more speech” approach to addressing offensive speech.

The court’s opinion is below. Should this case be appealed to the United States Court of Appeals for the Fourth Circuit, we’ll keep you apprised.