I pretty much agree with everything Prof. Volokh says in this post but I would add that is is particularly disturbing and dangerous that these claims not only made it to the lawsuit stage but also that sufficiently many people in the Feminist Majority Foundation (not mainstream but not tinfoil hat nutters) thought this was worth pursuing.
Sure, demanding censorship of mean, hurtful and demeaning comments about your group or identity isn’t anything to write home about. However, what really sets this situation apart is that the demand wasn’t to punish the anonymous individuals responsible but to stop students from choosing to access an information source because it might allow them to read these awful things.
Demands for censorship in response to hurtful/mean/awful comments is nothing to write home about (from either side of the political aisle) but I think something is particularly distasteful about demanding policies that would allow all the assholes in a 5 mile radius to continue attacking, degrading, spreading hurtful gossip about and otherwise making life bad for some women on campus while barring those very women from keeping abreast about what is being said about them so they can refute malicious gossip, take threats to the police and otherwise protect themselves (reputationally and physcially).
Sure, I know those filing the suit no doubt intended to discourage people from posting such hateful and derogatory remarks in the future by eliminating the on campus audience for them. However, this line of argument could equally well be used to deny students access to a contrarian blog (say by a former student) making an extended argument that, because of innate ability differences, the schools affirmative action policy was driving reductions in academic rigor/performance. Even if the students visiting the blog were driven by simple curiosity and desire to evaluate the claims for themselves, if the continued posts were clearly motivated by the blogger’s desire to reach so many students with his message there would be an equally strong argument for barring students from accessing the site. With the predictable result that it would probably only increase the extent to which students agree with those unpopular views (the feeling that a view is being suppressed is far more alluring than poor arguments for it).
In a different context I would be far more charitable. If a private university were being asked to ban the platform I’d still oppose the suggestion but it wouldn’t really be fair to suggest the proponents would be responsible for denying victims a chance to (easily) make themselves aware of attacks against them so they can respond. After all, the advocates would be presumably be suggesting that in the particular case the benefits would outweigh the costs. However, the plaintiffs were asking the courts, an institution designed to apply predicatable precedent not case specific balancing, to rule that such an outcome was required. As such I do think its fair to point out the plaintiffs are asking for a rule which, in many of its applications, would deny the victims warning and an ability to respond without substantially reducing the torrent of hate and insults.
The fact that this resulted in a full court case with published opinion makes me worry that the argument was either plausible enough that reasonable lawyers thought it had a chance of prevailing or, perhaps more likely, those advancing the suit felt the risk of enduring such a lawsuit would discourage universities from being quite so protective of free speech in the future. Particularly so for private universities who aren’t bound by any need to comply with the first amendment.
Opinion | Court rejects Feminist Majority Foundation’s demand that public university block access to Yik Yak
University of Mary Washington had no obligation to “ban Yik Yak from the campus wireless network ,” because such a ban “may have exposed the university to liability under the First Amendment” (and in any case wasn’t required by Title IX or the equal protection clause.