April 2014 Advocate – Skyline’s new media policy

Faculty rights

Skyline’s new media policy restricts employees’ right to free speech

by Robert J. Bezemek, AFT Local 1493 attorney

bezemek-webOn March 12, 2014 Skyline College announced to employees its unilaterally adopted “Media Policy” designed to “protect” the college’s “brand and image.” The policy attempts to do this by restricting faculty comments to reporters and “the media.” To be fair, the document does not outright forbid such comments. Rather, it “recommends” and “requests” that employees not speak to reporters, but forward all inquiries to the Director of Marketing, Communication and Public Relations. However, the manner of its presentation, and its emphasis on such protocols reasonably communicates a message that employees should not respond directly to the media. In this way the policy has a “Big Brother”-like approach that coerces compliance, and discourages or “chills” employees’ exercise of their constitutional and statutory rights of employees.

Recalling the Pentagon Papers case

The newly-crafted policy illustrates why it is never too late to review the meaning of free speech in America, and to revisit the famous case of the Pentagon Papers and the “prior restraint” doctrine. It all began when a public employee, Daniel Ellsberg, released documents to the New York Times and Washington Post that included a secret “history” of American involvement in Viet Nam, Laos and Cambodia, which contradicted information previously released by the government to Congress and the American people. To prevent publication of the “papers”, the United States obtained an injunction. In a landmark decision, the US Supreme Court held that this injunction constituted illegal prior restraint on speech. See New York Times v. Sullivan (1971) 403 US 713. The Court relied on an opinion issued 7 decades earlier, that a main purpose of the First Amendment was to forbid “previous restraints” on publication of information. The Times case is not limited to the US government, but applies to all governmental bodies.  

The putative Skyline policy is a quintessential example of a prior restraint on employee speech. The practical problem with the policy is that it confuses the right of a public employer to delineate what its official representatives say FOR the college with what its employees, students and even Board members say ABOUT the college. A college is a marketplace of ideas, not a market with one idea. No matter how satisfying it may be for PR folks to control “images” and “brands,” such non-lofty goals cannot interfere in Constitutional rights of freedom of speech. And while such media policies may become ubiquitous with private schools and employers, they are generally illegal when grafted onto public entities.

Public education has always been a matter of public concern in this country.  When employees who work for a public college speak with the media about their college, program, courses, working conditions, activities or other topics, they are exercising their constitutional rights to speak about issues of public concern.  In order to restrain employee speech, a public employer carries a “particularly heavy” burden to prove that its media policies are “necessary to the efficient operation” of the agency.  In the case of Skyline College, it has managed to survive, actually excel, for more than 50 years without muzzling employee speech. Suppression of speech doesn’t just affect the speaker, it also deprives listeners – the public – of essential information. In order to justify a prior restraint, the government must show that the interests of both the speakers and the listeners, present and future, are “outweighed” by actual impacts on the “actual operation” of the college. See, e.g., U.S. v. National Treasury Employees Union (1995) 513 US 454, 468. A “branding” campaign hardly qualifies. For these reasons, a federal court in New York held a media policy unconstitutional, even when employees were regularly exposed to “confidential” information about welfare recipients. See Harman v. City of New York, 140 F. 3d 111 (2d Cir. 1998).

Besides its violation of the Constitution, a policy that restrains future speech will ordinarily violate California’s collective bargaining law, the Educational Employment Relations Act, if its natural and reasonable tendency is to chill employees in the exercise of their EERA rights to inform the press of their working conditions or other employment-related matters. 

Finally, traditional academic freedom also protects academic employees’ rights to offer opinions on topics that affect their colleges, including such matters as accreditation. Demers v. Austin, 729 F. 3d 1011 (9th Cir. 2013)

Prior restraint policies adversely affect the rights of public employees to comment on matters of public concern, and go to the core of those freedoms the First Amendment was designed to protect. Such policies also harm prospective listeners and the public. 

“Media Policy Clarification” issued

On March 14, Skyline College issued a “clarification” of its media policy, stating: “Faculty members who are speaking to the media as subject matter experts in their area of expertise and are not speaking on behalf of the college are welcome to proceed as they normally would.” This statement, however, does not acknowledge the fact that all faculty are protected by the law, regardless of the level of expertise or knowledge one may have regarding the topics under discussion.

The recently adopted Skyline policy neglects to contain necessary assurances that utilizing a PR service is merely an option for employees, except perhaps for those rare occasions, as when someone has been engaged to speak on behalf of the college to express the college’s “official” position. It wrongfully presents the policy as outlining expected protocols. In my opinion, faculty, students and even Board members cannot be required nor can they be expected by their employer to obtain permission or approval of their words when they decide to talk to the media about their college. The Constitution demands this recognition by public colleges.