Law offers some protections for employees, students to speak out


Blanket restrictions on talk between the media and school employees may be legally unenforceable – and such restrictions on students almost certainly are void.





It’s a disturbingly common refrain for journalists to hear: “I’m not allowed to talk to you, everything has to go through Media Relations.” Few responses are more frustrating and unwelcome to a reporter on a deadline who needs first-hand information, not a prepared statement.


But is it even legal for a school or college to impose such a gag order? Can employees — or students — be punished simply for providing truthful information to journalists?

It turns out that the law is more protective of the rights of employees — and, especially, of students — than many institutions think. Even employees at private schools and colleges may be legally protected against retaliation if they discuss matters of public concern.

Many variables can affect the scope of employee rights, including employment contracts and tenure. Because those variables are so case-specific and often dependent on state law, this article does not attempt to cover every way in which an employee might defend against discipline for speaking with the media without authorization. The following is an attempt to identify some of the more promising legal theories in response to overbroad gag orders, and point out where the law might not offer relief.

Gag orders at public institutions
The reaction of schools and colleges to controversy often results in gag orders directing employees not to discuss particular matters. At times, schools go even further and prohibit any contact between their employees and the media.

For instance, a “model policy” put forth by the Pennsylvania School Boards Association for consideration by its member districts states: “Staff members shall not give school information or interviews requested by news media representatives without prior approval of the district’s communications representative.” [1]

There is a long history of public employees successfully challenging government policies that categorically ban communicating with the media. A broad rule that gets in the way of employees’ ability to speak out on matters of public concern will very likely be declared unconstitutional.

The starting points are the U.S. Supreme Court’s rulings in the cases of Pickering v. Board of Education [2] and Connick v. Myers. [3] In those cases, the Court established a “balancing test” between the free-speech rights of public employees versus the ability of government managers to reasonably regulate the messages that might appear to be official speech on behalf of the agency. In these rulings, the Court affirmed that government employees have First Amendment protection against retaliation when speaking out on matters of public concern, as opposed to simply airing personal grievances.

The key Supreme Court case addressing a blanket restriction on employee speech is United States v. National Treasury Employees Union (known as the “NTEU” case). [4] In that 1995 ruling, the Court struck down ethics laws that prohibited federal workers from accepting payment for writing articles or giving speeches.

The Court found that ban was not narrowly tailored to respond to the government’s concerns over influence-buying: “Deferring to the Government’s speculation about the pernicious effects of thousands of articles and speeches yet to be written or delivered would encroach unacceptably on First Amendment protections.” [5]

The standard that the Supreme Court recognized in the NTEU case is considered even more protective of free speech than Pickering or ConnickThat’s because the policy being challenged by the workers in NTEU was a blanket “prior restraint” applying to many thousands of workers, not just an individual disciplinary decision. 

Applying the principles of the NTEU, Pickering and Connick cases, courts have regularly struck down blanket prohibitions that cut off public employees from discussing government business with the media.

In a key case involving college students and employees, a federal appeals court decided that the University of Illinois violated the First Amendment by interfering with a protest against the use of a Native American character (“Chief Illiniwek”) as a school mascot. [6]

Students and faculty who found the mascot racially insensitive announced a plan to contact Illinois athletic recruits, in hopes that pressure from sought — after athletes might change the university’s mind.

The chancellor of the university responded with a campus — wide email forbidding employees from contacting a student recruit without permission from the athletic director’s office. The directive was later broadened to limit communications by students as well as by employees.

The Seventh Circuit U.S. Court of Appeals applied the Supreme Court’s NTEU tandard and decided that the university’s rationale for the ban ­— that the contacts might get the school in trouble with the NCAA — was inadequate to justify a blanket restriction covering some 44,000 potential speakers: “The free-speech interest of the plaintiffs — members of a major public university community — in questioning what they see as blatant racial stereotyping is substantial. That interest is not outweighed by fear that an athletic association might not approve of what they say.” [7]

In a prominent case involving a gag order on public employees, the Second Circuit U.S. Court of Appeals decided that a child welfare agency could not enforce a ban requiring pre-approval of all comments to the news media “regarding any policies or activities of the agency.” [8]

An employee of the New York City Child Welfare Administration was suspended for giving an interview to ABC News – on her lunch hour, off the agency’s premises – commenting on the under-reporting of child-abuse deaths. She challenged the discipline as a violation of her First Amendment rights, and the appeals court agreed.

The Second Circuit observed that “prior restraints” on speech — policies that forbid speech entirely, rather than simply punishing it afterward ­— are viewed skeptically and are difficult to justify. In this case, the court said, the agency’s policy was too broad and prevented too much “whistle-blowing” speech that might be important for the public to hear.

Many other broad-based gag orders prohibiting all contact with the media have declared unconstitutional as well. Examples include:
  • An Ohio court struck down a fire department rule requiring assistant fire chiefs to get the chief’s approval before speaking publicly on any department matters. [9]
  • A South Dakota court threw out a municipal ordinance prohibiting city employees from commenting on internal business decisions or department regulations without prior approval. [10]
  • A Massachusetts court decided that a police department rule barring the release of information to the media by all but the chief of police or his designee was unconstitutionally overbroad. [11]
Most successful challenges to gag orders predated the Supreme Court’s latest ruling about government employee speech, Garcetti v. Ceballos. [12] In that case, the Court decided that a supervisor did not violate the First Amendment in disciplining an assistant district attorney who wrote a memo raising questions about the validity of a case that his office was prosecuting.

The decisive factor in the Garcetti case is that the speech — a legal memo to supervisors — was a mandatory part of the lawyer’s job responsibilities: “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” [13]

Although it is not clear exactly when a judge will interpret a government employee’s speech as being “pursuant to official duties,” it should be relatively easy to prove that speaking to the news media is not an “official duty” of most public employees. Therefore, such speech should be entitled to First Amendment protection, as long as it involves something beyond a purely personal grievance. [14]

The argument will be stronger if the ban applies to all communications between the employee and the media, regardless of subject. For instance, a college will have a relatively strong interest in preventing a low-level employee in the finance office from giving out information about the college’s budget, but a relatively weak interest in preventing that same employee from giving an interview about her anxieties over crime or traffic on campus.

Gag orders at private institutions
Although journalists typically have narrower access to information at private universities than at public universities, one recent federal ruling actually gives employees at private colleges a strong argument against censorship of their communications.

Workers at private schools and colleges do not have the benefit of the First Amendment, since it applies only to government agencies. But they do have some protection under federal laws such as the National Labor Relations Act.

The National Labor Relations Board, or NLRB, is a federal agency that enforces worker-rights laws. In recent years, the NLRB has been cracking down on employers who interfere with the rights of their workers to organize to improve job conditions, even when the “organizing” is very informal. This type of organizing among employees is referred to in the law as “concerted activity.”

In a ruling issued July 30, 2012, the NLRB decided that a health care company violated the rights of its workers by ordering an employee not to talk to anyone about an internal company investigation. [15]

On a 2-1 vote, the NLRB decided that imposing a gag order on an employee involved in an internal investigation requires proof of a “legitimate business justification” that outweighs the employees’ right to engage in concerted activities.

This ruling probably does not really change the landscape in terms of an employee’s ability to give interviews to the news media. But it might affect an employee’s right to speak out in other ways, such as writing op-ed columns or — as an NLRB judge ruled in one recent case — trying to rally co-workers through social media to improve working conditions. [16] The key is whether the employee is attempting to communicate with co-workers for the purpose of organizing around workplace issues.

The NLRB ruling highlights and interesting difference between the rights of public versus private employees: The First Amendment protects speech so long as it is not merely the employee’s complaint about his own working conditions, while the National Labor Relations Act protects exactly that in a private workplace: Complaints made to co- workers about working conditions.
The NLRB does not have jurisdiction over government workplaces, so its rulings only apply to private colleges.

Gag orders on students
The rights of students are governed by legal standards different than those for employees.

At a public K — 12 school, students speaking on campus during the school day have the benefit of the level of First Amendment protection recognized by the U.S. Supreme Court in its landmark 1969 case, Tinker v. Des Moines Independent Community School District. [17] School officials cannot prevent or punish speech under Tinker unless it substantially interferes with the orderly operation of the school. Simply discussing a matter of public controversy would not be a legally adequate reason.

At a public college or university, students speaking on campus during the school day have at least the Tinker level of protection. A few courts have gone further and equated college students’ rights with the rights of non-student citizens speaking outside the campus setting – meaning that the government will almost never be able to justify restricting speech on the basis of its content. [18]

There is well-documented confusion over when, if ever, it is permissible for a school or college to regulate what students say when they are off campus.
At least two of the 12 geographic federal circuits, the Fourth and the Eighth, have firmly decided that off-campus speech is governed by the same Tinker standard as speech on school grounds during the school day. [19] Two other circuits, the Second and Third, have expressed uncertainty whether Tinker is sufficiently protective of students’ rights when they are speaking on their own time. [20]

Even assuming that students’ contact with members of the news media is governed by the Tinker standard, a school or college almost never will be able to show that merely giving interviews constitutes a “disruption” of school functions. Unlike an employee, a student neither speaks as an official representative of the school nor is privy to confidential information that might be compromised.

Thus, an order directing students not to discuss particular school matters when they are on their own time would almost certainly be struck down as unconstitutional, as would any punishment imposed on a student who violated such a ban.

Media-specific gag orders
Finally, any gag order that is directed at a specific media organization – for instance, an order selectively restricting only one news organization’s access to interviews with public employees – may be vulnerable to First Amendment challenge if a retaliatory motive can be shown.

Very few cases have gone to court challenging the ability of the government to pick-and-choose among which journalists receive preferred access (or which receive inferior access).

As a general rule, government agencies can make reasonable distinctions in how they treat media organizations, especially if there is a scarce resource that must be divided up, such as seats in a press box. It would not implicate the First Amendment if a government agency decided to award limited seats only to media above a certain circulation, or only certain types of specialty media; for instance, a soccer magazine might be given first choice of seating and sideline access at a soccer match.

Government employees also are free to give tips and leaks to the media organizations they like and trust. It is not a First Amendment violation simply to give inside information to one news outlet and not the competitor.

But it is at least possible to make out a First Amendment claim if access to events that is otherwise made available to comparable media organizations is denied or withdrawn based on a particular journalist’s viewpoint or the views of his publication.

For example, in the case of Sherrill v. Knight, [21] a reporter for a liberal newsmagazine, The Nation, successfully challenged his exclusion from White House press conferences. The reporter had received press credentials without problems for several years, but suddenly had his credential revoked by then-President Lyndon Johnson’s administration.

The White House claimed that a background check showed that the reporter was a security risk. But a federal appeals court looked skeptically at that claim, because the White House did not appear to have any standards about what a “security risk” meant, so that they could manipulate that standard as a way of excluding reporters they disliked.

The court in Sherrill was careful to say that there is no First Amendment right to demand access to the White House or to any government press room. But once a government agency sets up a credentialing system with certain rules and standards, it cannot deviate from those standards and deny access based on the journalist’s speech.

In a comparable case, a Texas state court found that there was a First Amendment right for news publications to be given equal opportunity to gather information, and that a state prosecutor could not create differential barriers to access impeding one particular newspaper that had given his office critical coverage. [22]

More recently in a case involving access to records from the Los Angeles Police Department, the Supreme Court indicated that there may be First Amendment issues if a government agency makes viewpoint-based decisions about which journalists do or don’t get public documents.

In that case, Los Angeles Police Department v. United Reporting Publishing Corp., the Court ruled that it was legal for the police department to give certain records only to non-commercial users, such as journalists or scholarly researchers, while denying the records to those wanting to re-sell them for profit. [23]

In a concurring opinion, Justice Ruth Bader Ginsburg — joined by three other justices, including one current one, Justice Stephen Breyer — said the LAPD’s distinction was lawful, but that a distinction based on the requester’s viewpoint would be “illegitimate.”24 Two dissenting justices (including one currently sitting one, Justice Anthony Kennedy) voted against the ruling but agreed with Ginsburg that viewpoint-based distinctions on access to records would be clearly unlawful. [25] So at least three of nine current justices are on record saying they would find it unconstitutional to differentiate among journalists based on viewpoint in making public records accessible.

Cases involving discriminatory treatment of news organizations are rare, and it will be difficult for journalists to successfully bring a challenge if the retaliatory treatment is intangible — for instance, being the last to receive a return phone call — rather than a matter of, as in the case of Southwestern Newspapers, a formal policy or procedure.

If particular journalists or particular news organizations can show, for example, that only their freedom-of-information requests go through extra steps that take longer, or that only they are required to go through a demanding booking process to get interviews, then — if there is an obviously retaliatory cause-and-effect — a First Amendment claim might succeed.

Conclusion
The bottom line is that blanket restrictions on communications between the media and employees of schools and colleges, even private ones, may be legally unenforceable – and such restrictions on the speech of students almost certainly are void. It generally will be the speakers — not the journalists who wish to speak with them — who are in the best position to bring a challenge, however.

A challenge will have the best chance to succeed if brought against an unconstitutionally broad policy as a whole, rather than as one employee’s defense after being disciplined. Judges are more willing to defer to managers in fact-specific employee discipline decisions than they are when a legislative body, such as a school board, enacts a policy applicable to all employees.

By Frank LoMonte, executive director of the Student Press Law Center.

Endnotes
1. Pennsylvania School Boards Association, Policy No. 911, News Media Relations, 1/08 Revision, available at http://www.splc.org/pdf/psbamodel.pdf.
2. 391 U.S. 563 (1968).
3. 461 U.S. 138 (1983).
4. 513 U.S. 454 (1995).
5. Id. at 475 n.21.
6. Crue v. Aiken, 370 F.3d 668 (7th Cir. 2004).
7. Id. at 680.
8. Harman v. City of New York, 140 F.3d 111 (2d Cir. 1998).
9. Spain v. City of Mansfield, 915 F. Supp. 919 (N.D. Ohio 1996).
10. Wolf v. City of Aberdeen, 758 F. Supp. 551 (D.S.D. 1991).
11. Wagner v. City of Holyoke, 100 F. Supp. 2d 78 (D. Mass. 2000).
12. 547 U.S. 410 (2006).
13. Id. at 421.
14. Some examples of what qualifies as speech addressing matters of public concern are spelled out in Brooks v. Univ. of Wisc. Bd. of Regents, 406 F.3d 476, 482 (7th Cir. 2005). They include: providing information to the media about a school board’s violation of an open-meetings law, writing a memorandum criticizing the school grading policy, speech revealing misconduct by fellow college faculty members, and sending a memo to a college ombudsman complaining about administrator pay raises.
15. In re Banner Health System, 358 NLRB No. 93, Case No. 28–CA–023438 (2012).
16. Hispanics United of Buffalo, Case No. 3-CA-27872, 2011 NLRB LEXIS 503 (Sept. 2, 2011).
17. 393 U.S. 503 (1969).
18. This more speech-protective view appears to be the position in the Third Circuit, covering Pennsylvania, New Jersey and Delaware. See, e.g., McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 247 (3d Cir. 2010) (“Public universities have significantly less leeway in regulating speech than public elementary or high schools.”).
19. Kowalski v. Berkeley County Sch., 652 F.3d 565 (4th Cir. 2011); D.J.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754 (8th Cir. 2011).
20. Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011); J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (en banc).
21. 569 F.2d 124 (D.C. Cir. 1977).
22. Southwestern Newspapers Corp. v. Curtis, 584 S.W.2d 362 (Tex. Civ. App. 1979).
23. 528 U.S. 32 (1999).
24. Id. at 43 (Ginsburg, J., concurring).
25. Id. at 44 (Stevens, J., dissenting).


legal analysis, reports, Winter 2013