Yakety Yak (Don’t Talk Back)

The Fourth Circuit majority opinion described it as a “a chant that glorified violence against women, including rape and necrophilia,” and “repulsive.” The University of Mary Washington rugby team, at an off-campus party, was chanting, or more likely singing, the bawdy 1920’s drinking song, “Walking Down Canal Street.” It set into motion a series of events that included the dissolution of the rugby team and led to the local chapter of Feminist Majority Foundation suing the school under Title IX.

The suit was dismissed on a motion to dismiss in the District Court, but the majority reversed.

The plaintiffs appealed to the Fourth Circuit, and this morning, in an opinion that was shockingly dismissive of the profound implications of this case for free speech, that court reinstated several of their claims. The bulk of the court’s decision turned on whether UMW “exercise[d] substantial control over both the harasser and the context in which the known harassment occurs,” as required to establish Title IX liability under the Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education.

In reaction to the complaints of Feminists United, there were a great many offensive responses on Yik Yak, a now-defunct app that allowed anonymous “Yaks” within a group for UMW. As passionate as the leaders of Feminists United were about the discriminatory nature of the rugby team’s song, and the school’s inadequate response to it, other students expressed their disagreement on Yik Yak.

The gravamen of the discrimination cause of action in the complaint was that UMW failed to deal with these Yaks. The majority agreed that, if proven, it would suffice.

The district court determined that UMW had little — if any — control over the context in which the Feminists United members were harassed, because nearly all of that harassment occurred through Yik Yak. We are satisfied, however, that the court’s decision in that regard is undermined by the Complaint’s factual allegations. In so ruling, we remain mindful that the Supreme Court’s Davis decision limits an educational institution’s Title IX liability for student-on-student sexual harassment to those situations where the defendant institution “exercises substantial control over both the harasser and the context in which the known harassment occurs.”

As the geographical area of Yik Yak was 1.5 miles, within which UMW was situated (but extending beyond the campus’ area), and it was transmitted over the school’s WiFi, the court inferred that the unknown people making the Yaks, or in terms of the Davis calculus, the “harassers,” were students and the “context” was UMW’s transmission of Yik Yak.

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.

***

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.

Whether this is technically accurate, as the court drew an analogy to illegal music downloading, that UMW failed to try to identify the Yakkers or remove the Yik Yak from its wireless network was sufficient to establish liability.

In dissent, Judge G. Steven Agee ripped the majority’s exposure of UMW for failure to assert control over the internets.

Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims. The University should not hesitate to seek further review.

On the one hand, had UMW “shut down” Yik Yak because Feminists United demanded it do so, what of the other students on campus who might wish to use it for other purposes? On the other hand, even if it was banned on the UMW system, it would remain available regardless, just not on their system. And while the plaintiffs conceded that the “harassers” were anonymous, the UMW Yik Yak extended beyond the campus, so that it could have been anyone and, even if it was students,they were beyond the school house gate.

But as FIRE’s Sam Harris notes, there remained an “elephant” on the WiFi that the court ignored.

Unfortunately, the opinion does not address one of the most significant issues in the case, which is whether the speech in question even rose to the level of unprotected harassment or true threats in the first place. FIRE strongly believes it did not, and we submitted an amici curiae brief — joined by the Cato Institute, the National Coalition Against Censorship, and law professor (and former ACLU president) Nadine Strossen — on that point, arguing that “[t]his case turns exclusively on the university’s response to offensive but constitutionally protected speech.” Ultimately, it is almost impossible to conceive of this case being resolved without addressing this enormous elephant in the room; if the speech was constitutionally protected, and was not harassment, then the question of substantial control is irrelevant.

Much as the women of Feminist United demanded that UMW eliminate offensive speech, it came in response to their speech, from their complaints about the rugby team to a subsequent student newspaper op-ed and lectures by Paige McKinsey, including her arguing against allowing “Greek Life” on campus because it would increase rapes.

Not only did this start with an attack on the rugby team for singing a “repulsive” song, but Feminists United didn’t care for a great many things happening on campus that others wanted. And they let Feminists United know their views in whatever language they chose, anonymously and wirelessly. The Fourth Circuit has now held that there is liability for UMW for free speech on the internet in response to feminist demands for control of thought and campus life.

29 thoughts on “Yakety Yak (Don’t Talk Back)

  1. JB

    Wondering: If the Wifi highway makes UMV liable, as in this case, can I sue county, state, feds for the actions and abusive words and gestures of the driver you went by, rolled down his window and cursed me and give me the finger, because he was pissed by the fact I was driving at the speed limit, aka, for him, too slow? Where does it start? Where does it stop? Whenever did people have the right not to be offended by words and opinions they dislike or disagree with?

        1. SHG Post author

          I never thought about the words until reading this opinion. They really are pretty repulsive, not that a ten-year-old puts that much thought into lyrics.

          1. Turk

            Or, perhaps, one might read the lyrics instead as a cautionary tale about the dangers of prostitution. Aren’t there (some) feminists who support it being outlawed?

            Yeah, I digressed. I know. But not as badly as the relative merits of three on the tree versus four on the floor.

          2. B. McLeod

            There are a couple of songs in Orpheus Caledonius for which I have to be pretty careful about performance locations.

  2. Lee

    Scott, I fear you have overstated the impact of the 4th Court’s decision.

    This was the reversal of the District Court’s dismissal under Fed. R. Civ. P. 12(b)(6). That only requires that, taking all allegations in the complaint as true and exercising all presumptions in favor of the plaintiffs, the complain alleges a “plausible” entitlement to relief. See, e.g. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). A complaint that cannot withstand a 12(b)(6) motion to dismiss borders on frivolous as it does not state any plausible right to relief under any facts.

    12(b)(6) is not a hard standard to meet and means nothing but that the plaintiffs get to proceed to the summary judgment stage, or possibly to trial.

    1. SHG Post author

      Perhaps, but assuming they can prove their facts, they will have established a violation under law. While the allegations of fact need be plausible, the law remains.

      1. Lee

        Ah, but there’s the rub. “Assuming they can prove their facts.” It’s a long way from surviving a 12(b)(6) challenge to trial on the merits.

        I predict that, if the case doesn’t settle, the District Court grants summary judgment against the remaining claims. (But of course, if I was that good at prediction, I’d probably be playing the horses or betting football, and not practicing law). 🙂

    2. Skink

      No, you understate the impact. Sure, dismissal motions have rules, very meager ones. But the courts lay-out the substantive law to be followed in making the case when deciding dismissal motions. It’s really simple: if the facts are true, the law provides liability because the court laid-out the law. That’s how appeals from dismissal orders set precedent. The rules of dismissal, merely stating a claim, mean next to nothing. It’s the substantive discussion that matters, and this matters.

      1. Lee

        But the only issue before the 4th Court was whether the plaintiffs failed to state a claim. Anything else would be dicta and not binding authority.

        And simple doesn’t mean easy. “If the facts are true” is vastly different than “the facts are true.” The plaintiffs still must prove that the harassment is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis v. Monroe Cty. Bd. of Educ., 524 U.S. 980, 119 S. Ct. 29 (1998).

        1. Skink

          It is not dicta. Just because it comes from a dismissal motion does not make it dicta. The court states the substantive law and applies it to allegations. The substantive law remains precedent.

          1. Lee

            But the 4th Court announced no new rules of substantive law. Again, all a plaintiff has to do to withstand a 12(b)(6) challenge is to ALLEGE fact that state a plausible claim for relief. Nothing has changed except that this case is allowed to proceed to the next stage.

            Many a suit survives 12(b)(6), only to perish at the summary judgment stage, and many that survive summary judgment die at trial. (And if this cases is that important, the defendants can always file for rehearing en banc or for certiorari).

            1. SHG Post author

              The first two times you said this didn’t convince me, but the third did the trick. Oh wait. It didn’t. There will not be a fourth.

  3. Jake

    Tune in next time, when we find out whether those rascally college feminaxos have succeeded in anything besides giving a couple of title NEIN! lawyers something to bill a few hours against.

    1. SHG Post author

      I’m beginning to get the sense that this doesn’t interest you enough to care, but it does enough to let me know you don’t care.

  4. ShootingHipster

    “The Fourth Circuit has now held that there is liability for UMW for free speech on the internet in response to feminist demands for control of thought and campus life.”
    I’m sure with this victory they’ll finally be placated. We can all relax now.

  5. MonitorsMost

    In a decision that’s bad from front to back, the First Amendment analysis is the worst. True threats aren’t protected with a citation to Virginia vs Black. That’s it.

    1. SHG Post author

      I didn’t bother getting into the true threats aspect of this. The irony is too brutal when the basis for validating a threat is that McKinsey felt so threatened she asked for police escort. After all, what better proves a point than post hoc ergo propter hoc?

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