Putting the ‘Public’ Back into Public Employment: A Roadmap for Challenging Prior Restraints That Prohibit Government Employees From Speaking to the News Media

68 Kan. L. Rev. 1 (2019)

68 Pages Posted: 16 Jun 2021

See all articles by Frank LoMonte

Frank LoMonte

University of Georgia School of Law; University of Florida Levin College of Law

Date Written: November 1, 2019

Abstract

“I’m not allowed to talk to the media” is one of the most frustrating responses a journalist can encounter in seeking information from a government agency. Scientists, police officers and schoolteachers have unique subject-matter expertise, and when they are restrained from sharing their knowledge, the public’s understanding of how government operates suffers. It is accepted as a self-evident article of faith that federal, state and local agencies can prohibit unapproved interactions between their employees and the news media. But that assumption rests on an aggressive interpretation of the scope of employer authority in the public sector, one that is irreconcilable with First Amendment doctrine, as well as with sound governance principles in a participatory democracy.

This Article explains why, despite setbacks for employee free-speech rights in recent years, a blanket prohibition on discussing work-related matters remains unconstitutionally overbroad and unenforceable – even though such policies are ubiquitous at all levels of government. Although the Trump administration’s aggressive post-election silencing of federal scientists brought the issue into stark relief, government agencies have long enforced constitutionally untenable “prior restraints” on public employees. The Article documents dozens of instances in which police departments, state universities and other public employers have imposed wholesale prohibitions on unapproved comments to journalists, and explains why those prohibitions are unlawful, both because of their overbreadth and because they confer standardless discretion on supervisors to make viewpoint-based decisions on who may be heard.

Drawing on analogous caselaw in the context of news organizations’ challenges to judicially imposed gag orders on trial participants, the Article draws a roadmap for aggrieved journalists to bring facial challenges to restraints that inhibit their sources from freely sharing information. Because employees are highly unlikely to sue in their own right – even though, when they do, their facial challenges invariably succeed – it is essential for courts to recognize standing for news organizations to step into the shoes of their silenced sources. Overturning these restrictive policies, the Article concludes, is a matter of great civic urgency, with fewer professional journalists covering government than at any time in modern history and more public-relations gatekeepers employed to “spin” the few who remain.

Keywords: First Amendment, freedom of speech, employee rights, whistleblowing, media law

Suggested Citation

LoMonte, Frank, Putting the ‘Public’ Back into Public Employment: A Roadmap for Challenging Prior Restraints That Prohibit Government Employees From Speaking to the News Media (November 1, 2019). 68 Kan. L. Rev. 1 (2019), Available at SSRN: https://ssrn.com/abstract=3861791

Frank LoMonte (Contact Author)

University of Georgia School of Law ( email )

P.O. Box 388
Athens, GA 30603
United States
(404)630-9836 (Phone)

HOME PAGE: http://https://firstamendment.law.uga.edu/contact/

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

HOME PAGE: http://www.brechner.org

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