Can student governments in California restrain their own officials from reporting on the student government’s activities unless they obtain prior approval from the government itself?

Answer

There are significant First Amendment concerns with a rule that requires student government officials, who are presumably elected by students, to refrain from reporting on any student government business, activities, or events to any newspaper or publication without formal approval from the student government itself.

As a general matter, the Supreme Court has said the government has “no interest in limiting its legislators’ capacity to discuss their views of local or national policy.” Bond v. Floyd, 385 U.S. 116, 135 (1966):

The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment … is that ‘debate on public issues should be uninhibited, robust, and wide-open.’ … Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected…. Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them.

Id. at 135-37. To the extent student government officials could be viewed as similar to elected officials, a similar principle may apply.

To the extent student government officials could be viewed as similar to public employees, the rule still presents First Amendment problems. The First Amendment generally prohibits a broad rule that prohibits public employees from saying anything at all about any kind of public business without prior approval. See, e.g., Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017) (holding that a policy prohibiting officers from saying anything at all about a particular law enforcement program violated the First Amendment as unconstitutional prior restraint).

If the student government officials are viewed as volunteers rather than employees, the same principle might apply. For First Amendment purposes, courts generally treat volunteers as similar to public employees. Hyland v. Wonder, 972 F.2d 1129, 1137–40 (9th Cir. 1992).

A more narrowly tailored rule, for example one that is limited to not speaking publicly about matters discussed in an otherwise lawful closed session, might not violate the First Amendment, but a broad rule that prohibits public comment of any kind on any subject having to do with the student government presents a serious First Amendment problem.