Q: My community college district has an unwritten policy that bars publicly employed campus safety officers from speaking to members of the press.
On several occasions they have told me of the policy and referred routine questions to supervisors. When I questioned supervisors about the policy, including media relations and the college president, they denied any policy existed.
If the policy does exist, and the college is willingly and knowingly restraining public employees from speaking, is it a violation of their first amendment rights? And what kind of recourse could those employees have if it is?
Q: My community college district has an unwritten policy that bars publicly employed campus safety officers from speaking to members of the press.
On several occasions they have told me of the policy and referred routine questions to supervisors. When I questioned supervisors about the policy, including media relations and the college president, they denied any policy existed.
If the policy does exist, and the college is willingly and knowingly restraining public employees from speaking, is it a violation of their first amendment rights? And what kind of recourse could those employees have if it is?
A: One thing you might do to find out if there is an official policy forbidding campus safety officers speaking to the press, you might also want to request, under the PRA, any records relating to any policy or guidelines on the same.
Whether or not the college district can impose restrictions on its employees with respect to speaking to the press depends on the position the employee holds, the speech at issue, and a number of other factors that may be relevant.
As a threshold matter, it is important to note that citizens do not surrender their First Amendment rights by becoming government employees. The First Amendment is binding on public institutions. See Widmar v. Vincent, 454 U.S. 263, 268–69 (1981):
(“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”); Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’”).
That said, employees may be limited in what they say on behalf of the governmental agency with which they are employed. Considerations include whether the employee was speaking on a matter of public concern and whether the employee spoke as a private citizen or public employee. See Dahlia v. Rodriguez, 735 F.3d 1060, 1066-67 (9th Cir. 2013).
If public safety officers here are being prevented from making official statements on behalf of the community college district’s public safety department, it may be that such restrictions are permissible (since the employee’s speech as a public official is being restricted, and not his or her speech as a private citizen).
On the other hand, if a public safety officer speaks out on a matter of public concern – for example, blows the whistle on some illegal practice within the department – such speech may be protected under the First Amendment (and any retaliation in the employment context taken against the public safety official could violate that employee’s First Amendment rights).
As you can see, the inquiry is necessarily fact specific.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.