4th Circuit Asked to Decide University’s Culpability for Online Threats

RICHMOND (CN) – Is a university responsible for anonymous online threats made against its students? That’s what a group of University of Mary Washington students is hoping to find out after taking their argument to the Fourth Circuit Tuesday.

The Feminist Majority Foundation, Feminists United on Campus and five individual plaintiffs sued the university in May 2017, after the school’s rugby team was filmed performing an offensive chant.

According to their complaint, when the plaintiffs complained to the university about the chant, their concerns were barely acknowledged.

However, that changed after one of the plaintiffs, Paige McKinsey, published an op-ed in the school paper condemning the act.

Outrage ensued, the school canned the rugby team, and that’s when the online threats started.

The vile threats — including rape, murder and torture — against members of the feminist group appeared on the anonymous messaging app Yik Yak, one of the many messaging apps that allows people, usually those on college campuses, to share secrets or information without identifying the original poster.

“Is it the obligation of the university to protect students from cyberbullying?” asked Erwin Chemerinsky, a Berkley-based lawyer representing the student group on Tuesday.

He accused the school of being indifferent to the student’s request for support and pointed to emails sent out by the administration that insisted there was nothing they could do because the speech being expressed was protected under the First Amendment.

But U.S. Circuit Judge Steven Agee, a George W. Bush appointee, said Chemerinsky’s argument could as easily be interpreted in the school’s favor.

He pointed specifically to the university’s concerns about the First Amendment as well as to other steps the school took, including assemblies and group meetings at which students could share their feelings on the matter, and emails sent out that focused on the issue.

“It’s hard for me to say the university did nothing,” the judge said.

Chemerinsky pushed back, saying while emails sent by university officials acknowledged what had happened, but didn’t condemn the online threats.

This inaction amounted to deliberate indifference in violation of Title IX of the Civil Rights Act, the attorney said.

When it was his turn to speak, Virginia Deputy Attorney General Samuel Towell said the school had to weigh student’s speech rights against the school’s ability to limit harmful or hurtful speech. The plaintiffs had suggested the school disable the app on the school’s internet network, but the school feared they would face a civil suit from Yik Yak if they took that step, he said.

“It was an app out of the university’s control,” Towell said, stressing the school’s liability rests on the amount of “substantial control” they have over the medium of speech transmission being used. He said the anonymity of the students also weakened the amount of control the school had over the incident.

This lead to a vigorous debate about the legality of threatening speech, and how to deal with it at a time when online anonymous speech is just a swipe away.

U.S. Circuit Judge Pamela Harris, an Obama appointee, asked if the university would have been liable  if the threats had not been online, but instead been printed on posters that would put up in the dead of night.

“Is there no obligation, no liability as long as the posters are anonymous?” she asked.

Towell stressed that there is a threshold for “credible threats” and pointed to one instance where a Yik Yak post was about a specific person and specific place where they intended to harm. Campus police were contacted by the victim and she was offered security to ensure she wouldn’t be attacked.

But U.S. Circuit Judge Robert King, a Clinton appointee, appeared disturbed by the entire defense. He pointed to Fourth Circuit precedent which found any threat, no matter the medium it is transmitted with, is a crime.

“A crime is a crime,” he said sternly before questioning the school’s logic. “The university has a degree of interest in protecting students, but threats against students are constitutionally protected?”

In his closing remarks, Chemerinsky reiterated some of the language of the threats, including one that suggested tying one of the women to a radiator and raping her.

“These are true threats and [the state] underestimates the record,” he said. “The university’s inaction amounts to deliberate indifference. They did nothing.”

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