RICHMOND — A federal appeals court on Tuesday suggested that colleges and universities have an obligation to protect students from cyberbullying in a case involving the University of Mary Washington, free speech and anonymous social media messages.
Two judges on the U.S. Court of Appeals for the 4th Circuit compared online threats against students to bomb threats by phone and said such speech is not protected by the First Amendment.
“It seems like you are asking for blanket immunity from cyberspace,” Judge Pamela Harris said after repeatedly questioning the university’s attorney.
A three-judge appeals panel was reviewing a lawsuit brought last year by members of a student-run feminist group, who accused the school of fostering a hostile environment and failing to protect them from threatening, sexist posts on the now-defunct messaging app Yik Yak.
Mary Washington officials said blocking access to a private social media app risked violating the free speech rights of other students at the Fredericksburg school.
A U.S. District Court judge in September dismissed the lawsuit, finding that the university had not violated Title IX’s ban on sex discrimination on college campuses, and the students appealed.
The case has attracted attention from a diverse collection of national organizations that raised concerns in court filings about censorship of campus speech on the one hand and the duty of colleges to respond to online harassment of students on the other.
At oral argument Tuesday, Harris pressed the deputy attorney general representing the university on why anonymous online messages were different from harassing posters displayed on campus or a banner message flown overhead by an airplane.
Sam Towell, a deputy attorney general, suggested that students had the option to download the app on their phones, unlike banners and posters that are visible to everyone. Of the hundreds of messages, Towell said, only one was a “true threat,” and in that case, the university provided police protection.
Members of the student group Feminists United initially filed a complaint in 2015 with the U.S. Education Department, alleging threats of sexual assault and cyberstalking after they spoke out on campus about Greek life and against a lewd chant by the rugby team. The group’s leaders pressed university officials to ban the app from the university’s WiFi and to disable it on campus.
The students “explained that they felt threatened and unsafe at school and that the harassment was interfering with their education,” and that the administration “took virtually no steps to prevent or remedy the hostile school environment,” according to the filing from the organization affiliated with the Feminist Majority Foundation.
Judge G. Steven Agee sounded skeptical that the university could have done more to help the students because the messages were anonymous and posted on a third-party app. He also seemed to accept that officials were limited in their response because of concerns about litigation if the school violated the free speech rights of other students.
“This Yik Yak thing isn’t anything the university controls,” Agee said.
Constitutional law professor Erwin Chemerinsky, representing the students, read aloud some of the most virulent messages about rape and a threat to “euthanize whoever caused this.” The fact that the messages were delivered online “doesn’t give the university a pass,” he said, as some of the group’s past and present members watched from the front row of the courtroom.
Judge Robert B. King said the university could have done more to track down the students behind the anonymous messages and said repeatedly that threats of rape or murder are not protected speech.
“What could be done to take off the mask to ID the criminal? What are you going to do about it?” King asked.
Towell, the state’s attorney, said the university took steps to address the harassment by sending campuswide messages, educating students about how to file complaints with Yik Yak and providing campus police protection.
The “activists’ engagement is commendable; their expectations of UMW were unrealistic,” Towell said in court filings that compared the anonymous postings with scribblings on a bathroom stall of an off-campus bar.
“It is a lowbrow speech forum over which UMW had no direct control.”
In cases involving alleged harassment between students, universities can be held liable if officials’ response to accusations is “deliberately indifferent.” The lawsuit also seeks to hold responsible the former university president, Richard Hurley, who retired in 2016.
The popular and controversial app that folded last year allowed smartphone users within a geographical area to post and read messages anonymously and in real time. The messages targeting members of Feminists United in spring 2015 coincided with the murder of Grace Mann, a member of the group, who was strangled by a roommate. Mann’s murder was not connected to the cyberbullying, but “the students understandably felt even more frightened about the threats directed against them,” according to the filing from their attorneys.
“In this environment, universities have to keep pace with how students are actually harassed on campus,” attorney Debra Katz said. The university, she said, is “looking for a rule that says they have no responsibility.”